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PETITIONER: DR I.B. GUPTA

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT14/01/1994

BENCH:

ACT:

HEADNOTE:

JUDGMENT:      ORDER 1.The  admitted  facts in the present case  are  that  on October  26,  1973, the respondent was appointed  as  Deputy Superintendent,  Government  Approved School (now  known  as ’Juvenile  Home’).  Applications were invited for the  posts of  Probation  Officers  (ad hoc), on April  11,  1980  from departmental   female   candidates   possessing    requisite qualifications.   The  respondent  applied for  one  of  the posts,  and  pursuant  to her selection,  was  appointed  as Probation  Officer  with  effect  from  June  2,  1980.   On February  15, 1983, she proceeded on maternity  leave  which was  duly  sanctioned on February 14, 1983 by  the  District Magistrate   who  is  the  Controlling  Officer  under   the Probation  of Offenders Act, 1958.  She resumed her duty  on June  16, 1983 on the same post.  It appears, however,  that on February 4, 1983, an order was passed by the  petitioner- State Government terminating her services.  According to the petitioners, the termination became necessary because in the meanwhile,  there  were  regular  appointments  through  the Public Service Commission.  According to the respondent, the order of termination was not communicated to her before  she proceeded   on  maternity  leave  and  hence   the   alleged termination  should be deemed to have been of no effect  and she  should  be  deemed  to have  continued  in  service  as Probation Officer.  This is particularly so because she  was allowed to resume service as Probation Officer on her return from leave on June 16, 1983 and subsequently by an order  of November   1,  1989,  the  Additional  Director  also   duly sanctioned  the  salary for the entire period of  her  leave from February 15, 1983 to June 15, 1983. 2.It appears that, in between, the Government had  passed an  order on February 26, 1983 appointing the respondent  as ad hoc Probation Officer although she was on leave.  She did not,  of  course, join the service pursuant to  this  order. Thereafter, another order was passed on June 4, 1983 against appointing  her  as ad hoc Probation Officer but  as  stated earlier, since her leave was duly sanctioned on February 14, 1983 and thereafter regularised by the order of November  1, 1989, it will have to be presumed that she had continued  in service  as  ad  hoc  Probation  Officer  from  her  initial appointment, i.e., on June 2, 1980. 3.It   further  appears  that  in  the  meanwhile,   U.P. Regularisation  of Ad Hoc Appointments (on posts within  the

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purview  of  U.P.  Public  Service  Commission)  (Amendment) Rules,  1984 (hereinafter referred to as the  ’Rules’)  came into  force  w.e.f. March 22, 1984.  These rules  made  tile Regularisation  Rules  of  1979 applicable  to  the  persons appointed  on  or before May 1, 1983.   According  to  these rules,  those who had put in ad hoc service for three  years and were 37 continuing  in  service on the date of commencement  of  the rules, i.e., March 22, 1984, were to be regularised. 4.Subsequently,  by  an  order of  March  27,  1984,  the respondent was reverted retrospectively, w.e.f. February 29, 1984  to  the  post of  Assistant  Superintendent,  District Shelter Workshop which post she had never held and to  which post  she could not have been reverted even otherwise  since she was directly appointed as Probation Officer though on ad hoc basis.  On May 4, 1984, therefore, the respondent  filed a  writ  petition before the High Court.  By virtue  of  the interim order, the order of reversion was stayed and liberty was given to the petitioner-State Government to post her  on any  other post with the salary scale equivalent to that  of Probation  Officer.   However, by the  impugned  order,  the petitioner  is  directed  to  consider  the  respondent  for regularisation under the rules. 5.The aforesaid facts make it clear that the  petitioners had  by  their own actions, viz., the sanction of  leave  on February  14,  1983 and its regularisation by the  order  of November  1, 1989, have treated the respondent as  being  in continuous  service as ad hoc Probation Officer w.e.f.  June 2, 1980.  Hence she is entitled to the benefit of the rules. She  was in service on March 22, 1984 and on that  day,  she had  completed  more than three years’ service in  the  post held by her.  The attempt of the State Government to  revert her  by the order of March 27, 1984 w.e.f. an earlier  date, viz.,  February  29, 1984 was obviously mala fide  and  made with the express purpose of depriving her of the benefit  of the  rules.  This is apart from the fact that the  reversion order  was bad in law since being a direct appointee to  the post of Probation Officer, she could not have been  reverted to   any   post  much  less  to  the   post   of   Assistant Superintendent, District Shelter Workshop which post she had never  held.   We are, therefore, of the view  that  she  is entitled  to be regularised as Probation Officer  under  the rules.   Her  seniority in that post will be  fixed  by  the Government according to law.  The special leave petition  is dismissed accordingly. 38 HANUMAN v. STATE OF RAJASTHAN ORDER 1.In respect of a murder that took place on September 11, 1978 one Shampooalias  Surendra Pratap Singh  was  tried for the offence punishable under Section302  of  Indian Penal  Code.  He was convicted by the Sessions  Court.   The prosecution  also relied on a dying declaration recorded  by Dr  I.B.  Gupta and also by the Executive  Magistrate.   The convicted  accused  preferred an appeal to the  High  Court. The High Court acquitted him.  However, in the course of the judgment the High Court commented on the conduct of Dr  I.B. Gupta and observed that subsequently at the instance of  the Investigating Officer the dying declaration of the  deceased was  interpolated as the dying declaration recorded  by  the Executive Magistrate and the same was not in conformity with regard to the participation of one Subhash.  Thereafter  the following observation is made by the High Court :               "The  entire conduct of Dr I.B. Gupta  in  the

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             circumstances   of   the   case   is    highly               undeserving  of a Medical Officer.  He is  not               fit to be retained in Government service." 2.It  may be mentioned here that the State had  preferred an  appeal  to  this Court against the  order  of  acquittal passed  by the High Court and as that appeal was pending  in this  Court  Dr  I.B. Gupta filed  the  present  appeal  for expunging  the  remarks and special leave  is  granted.   It appears that the State appeal is abated since the respondent died.   In this appeal it is submitted that Dr  I.B.  Gupta, the appellant, only acted in discharge of his official  duty and it was a typographical mistake, namely, that the  timing was   1.45  a.m.  instead  of  1.45  p.m.  when  the   dying declaration was recorded and observation made is of  serious nature affecting his career and his promotion also. 3.We  have perused that part of the judgment of the  High Court.   The  observation  is made  mainly  relying  on  the statement  of the Investigating Officer who is said to  have recorded the statement of the doctor under Section 161 CrPC. Relying  on  the  statement,  the  High  Court  reached  the conclusion that the doctor also connived to bring the  dying declaration  in  conformity with  the  prosecution  version. This  observation in any event overlooks the fact  that  the Investigating   Officer   is  also   responsible   and   the observation  is not strictly called for against  the  doctor who  only  treated the injured and attended on him  at  that stage.    The   doctor  has  not  disowned  any   of   those irregularities which by themselves could happen in discharge of   his   official  duty  but  on  the   basis   of   those irregularities  the  observation that he is not  fit  to  be retained  in Government service is rather damaging and  far- fetched,  without  any  further inquiry as  to  the  alleged conduct of the doctor.  Any such stricture which affects his career  rather amounts to condemn him without  being  heard. In  these  circumstances, this observation in tile  form  of stricture is quashed.  The appeal is allowed accordingly. 39