JUDGMENT Bharati Sapru, J.
1. Heard learned Counsel for the petitioner Shri K.S. Rathor and learned Standing Counsel Shri P.P. Srivastava for the State.
This writ petition has been filed by the petitioner seeking a writ of certiorari to quash the order dated 18.3.1988 passed by the respondent No. 5 Senior Superintendent of Police, by which the petitioner was removed from his temporary service as a Police Constable. The second prayer of the petitioner is that a writ of mandamus be issued directing the respondents to re-instate the petitioner in service and grant him all benefits in accordance with law.
2. The facts of the case are that an advertisement was issued on 16.10.86 for the recruitment of Police Constables. At the bottom of the advertisement, a note was appended that the recruitment, which was being made to this advertisement be of a temporary nature and as and when vacancies occur, those persons who are selected would be adjusted. Other conditions imposed are passing of the fitness test and character classification, for which, the selected recruitment was not given to him.
3. The petitioner also appeared and was selected. His name was found at Sr. No. 97 in the select list dated 1.1.87. The petitioner was sent for training and, thereafter, was sent to Meerut at the Reserve Police Line, Meerut. It is the petitioner's case that he has joined his duties as Police Constable but without any notice or opportunity of hearing, the petitioner was declared to be relieved on account of his alleged failing in the examinations during the training. He was informed by the impugned letter dated 18.3.88 that he was being relieved on account of the fact that he had failed in the training and, therefore, he was being relieved. The petitioner's contention, therefore, is that his removal was illegal and bad and violative of Regulation 541 of the U.P. Police Regulations and in view of this, the petitioner started making representations to the Director General of Police for redressal of his grievances. The petitioner has appended as Annexures to the writ petition being Annexure Nos. 3, 4, 5, 6 & 7 all his representations which were made over a period of three years and because the same was not decided, he ultimately filed this writ petition, after a period of three years, claiming relief as stated in the above noted paragraphs. The petitioner has also claimed parity in the writ petition with other recruits who approached this writ Court and whose petitions were allowed in their favour.
4. The State has filed a counter affidavit in which the State has stated that the petitioner was relieved because he had failed in his examinations during the training period. He was permitted to appear in the examination always but he was not successful.
5. Other than the counter affidavit, the State has also filed a supplementary counter affidavit stating that on two occasions, the petitioner failed to pass the training programme and, therefore, he was discharged from the recruit training course by order dated 18.3.88. It is further stated that the petitioner did not even approach this Court for a period of almost four years after the passing of the order dated 18.3.88.
6. Learned Standing Counsel has argued that it is apparent from the advertisement appended to the supplementary affidavit filed by the petitioner that the petitioner had applied against the advertisement for temporary recruitment as police constable, which was only to be confirmed as and when there was a vacancy and as and when the candidate had successfully completed the training programme.
7. Learned Standing Counsel has argued that in the case of the petitioner, Regulation 541 was not applicable because Regulation 541 only is given to recruits who are recruited against the clear vacancies and not on a temporary basis. Regulation 541 is quoted herein below.
541.(1) 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.
(a) those recruited directly in the Criminal Investigation Department or District Intelligence Staff will be on probation for three years, and
(b) those transferred to the Mounted Police will be governed by the directions in paragraph 84 of the Police Regulations.
If at the end of the period of probation conduct and work have been satisfactory and the recruit has been approved by the Deputy Inspector General of Police for service in the force, the Superintendent of Police will confirm him in his appointment.
(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 he 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 he discharged. The recruit must furnish his representation in writing and it will he duly considered by the Superintendent of Police before passing the orders of discharge.
(3) Every order passed by a superintendent under sub-paragraph (2) above shall subject to the control of the Deputy Inspector General be final.
The admitted position is that the petitioner could not successfully clear his training programme and he had been recruited as a temporary constable.
8. Learned Standing Counsel has placed reliance on a full Bench decision of this Court in the case of Nanak Chand v. State of U.P. and Ors. as reported in 1971 ALJ 724 in which this Court has held that the police Regulation 541 applies to those constables who are appointed as probationers against a clear vacancy and if the appointment was not a temporary capacity it would have no application. To quote the police regulation 541(1) "A recruit will be on probation from the date he begins to officiate in a clear vacancy". The petitioner has not averred at anywhere in his petition or in his subsequent affidavits that he had been selected against a clear vacancy or that he was on probation and was officiating in a clear vacancy.
9. Having heard learned Counsel for the petitioner and learned Standing Counsel for the respondent State, I am of the opinion that the arguments made by learned Standing Counsel have substance, it is clearly established from the record that the petitioner was not recruited against a clear vacancy and, therefore, regulation 541 has no application in this case. The argument of the learned Counsel for the petitioner that Regulation 541 of the Police Regulations had been violated in this case, therefore, fails and can not be accepted.
10. In view of the discussions made above, there is no merit in the writ petition and it is liable to be dismissed. The writ petition is, accordingly, dismissed. There will be no order as to costs.