Allahabad High Court
Chandra Shekhar vs State Of U.P. And 2 Others on 8 May, 2017
Author: Dilip Gupta
Bench: Dilip Gupta, Vinod Kumar Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 39 Case :- SPECIAL APPEAL No. - 687 of 2015 Appellant :- Chandra Shekhar Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Siddharth Khare Counsel for Respondent :- C.S.C. Hon'ble Dilip Gupta,J.
Hon'ble Vinod Kumar Misra,J.
This Special Appeal has been filed under Chapter VIII Rule 5 of the Allahabad High Court Rules to assail the judgment dated 8 September 2015 of a learned Judge of this Court by which Writ-A No. 13769 of 1993 that was filed for quashing the order dated 30 March 1993 was dismissed. The writ petitioner who had been recruited as a constable in The U.P. Pradeshik Armed Constabulary1 was informed by the order dated 30 March 1993 that his services were no longer required and that they would come to an end on receipt of the notice in terms of the provisions of The Uttar Pradesh Temporary Government Servants (Termination of Service) Rules,19752.
The learned Judge noticed that the allegations that had been made against the writ petitioner were very serious in nature as they related to an incident when the writ petitioner was posted at the Taj Mahal Hotel, Delhi in connection with the security of the delegation that had come from Indonesia headed by the Foreign Minister. The incident is said to have taken place on 14 March, 1993. A lady delegate was staying in Room No. 930 and when all the delegates had left, the writ petitioner knocked on the door of the room and asked the lady delegate for a glass of water. The lady delegate permitted the writ petitioner to enter the room and offered a glass of water. After about twenty-twenty five minutes, the writ petitioner again knocked and wanted a glass of water. He was allowed to enter the room and when the lady delegate turned to pour water in the glass for him, the writ petitioner bent and caressed her legs and thereafter tried to lift her dress from behind. The lady delegate strongly protested and raised an alarm. The writ petitioner immediately left the room. The incident caused considerable embarrassment to the Government of India as it related to misbehavior with a foreign lady delegate accompanying the Foreign Minister of Indonesia and had brought national honour to disrepute. In fact, the Government of India had to offer a public apology to the lady delegate and the Government of Indonesia for this behavior of the writ petitioner. The learned Judge after taking note of this incident and the fact that the writ petitioner was a temporary recruit, upheld the order and dismissed the writ petition.
Sri Ashok Khare, learned Senior Counsel for the appellant submitted that the 1975 Rules would have no application to the case of the petitioner since the service conditions of members of PAC are governed by The Uttar Pradesh Pradeshik Armed Constabulary Act, 19483 read with Police Act, 1861 and the Uttar Pradesh Police Regulations4 framed thereunder. The submission of learned Senior Counsel is that action could have been taken against the writ petitioner only in accordance with Regulation 541 of the Police Regulations and that the impugned order is in the teeth of the judgment of the Supreme Court in Chandra Prakash Shahi v. State of U.P. and Others5. Learned Senior Counsel further submitted that the order is punitive in nature and, therefore, deserves to be set aside.
Learned Standing Counsel for the State has, however, submitted that since the writ petitioner was recruited as a temporary constable in the PAC, Regulation 541 of the Police Regulation would not be applicable and that the impugned order dated 30 March 1993 by which the services of the writ petitioner had been dispensed in accordance with the 1975 Rules, does not suffer from any illegality. Learned Standing Counsel also submitted that order is not punitive in nature.
We have considered the submissions advanced by the learned counsel for the parties.
The writ petitioner was recruited as constable in PAC on 3 November 1986. The writ petitioner stated in the writ petition that appointment letter was not issued. In the counter affidavit, a specific stand has been taken that the writ petitioner was appointed on purely temporary basis and that he had not been appointed against a substantive vacancy nor was he placed on probation. In the rejoinder affidavit, no document has been filed to controvert the statement made in the counter affidavit and all that has been stated is that the services of a public servant who has continued in service for more than three years cannot be terminated like a temporary employee. In the absence of any document having been filed by the writ petitioner to demonstrate that he was appointed on probation, the stand of the respondent that the writ petitioner was a temporary recruit has to be accepted.
The contention of Sri Ashok Khare, learned Senior Counsel appearing for the writ petitioner is that the services could have been discharged only in accordance with the procedure prescribed under Regulation 541 (2) of the Police Regulations and the 1975 Rules could not have been resorted to for dispensing with the services since they do not relate to constables in PAC. In support of this contention, learned Senior Counsel has placed reliance upon the decision of the Supreme Court in Chandra Prakash Shahi.
In order to appreciate the contention advanced by learned counsel for the parties it would be appropriate to reproduce Rule 3 of the 1975 Rules and Regulation 541 of the Police Regulations.
Rule 3 of the 1975 Rules, on which reliance has been placed by the State, is as follow:-
"3. Termination of Service:-
(1) Nothwithstanding anything to the contrary in any existing rules or orders on the subject, the services of a Government servant in temporary service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant.
(2) The period of notice shall be one month:
Provided that the services of any such Government servant may be terminated forthwith and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice or as the case may be, for the period by which such notice falls short of one month at the same rates at which he was drawing them immediately before the termination of his services:
Provided further that it shall be open to the appointment authority to relieve a Government servant without any notice or accept notice for a shorter period, without requiring the Government servant to pay any penalty in lieu of notice:
Provided also that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated shall be effective only if it is accepted by the appointing authority, provided in the case of a contemplated disciplinary proceeding, the Government servant is informed of the non acceptances of his notice before the expiry of that notice."
Regulation 541 of the Police Regulations, on which reliance has been placed by the writ petitioner, is as follows :-
"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 be 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 be discharged. The recruit must furnish his representation in writing and it will be 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 issue as to whether a person who has been appointed as a constable on temporary basis is entitled to benefit of Regulation 541 of the Police Regulations has been considered by a Full Bench of this Court in State of U.P. through Principal Secretary and other v. Rajendra Singh and another6 It had been contended before the Full Bench by the writ petitioner that the services of a Constable appointed on a temporary basis could be dispensed with only in accordance with the procedure prescribed under Regulation 541 of the Police Regulations. The State, however, contended that the services of a constable appointed on a temporary basis are not governed by Regulation 541 which applies only to probationers, but by the 1975 Rules that have been framed by the State under Article 309 of the Constitution.
After referring to the two Full Bench decisions of this Court in Nanak Chand v. State of U.P7. and Vijay Singh v. State of U.P8., the Full Bench laid down the following principles of law:-
"Insofar as the present controversy is concerned, it would now be necessary for the Court to formulate the basic principles which have emerged on the subject:-
(i) The Police Act 1861 and the Rules framed under it constitute a self-contained Code and by virtue of the provisions of Article 313 of the Constitution, the Act and the Rules continue to remain in force, under Article 313 of the Constitution;
(ii) Rules and Government Orders referable to a specific source of power under the Police Act 1861 such as Section 2 or, as the case may be, Section 46 (2) (c) would continue to hold the field and would not be abrogated merely by the exercise of the general rule-making power conferred by the proviso to Article 309 of the Constitution;
(iii) Under the proviso to Article 309, rules regulating the recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the Union and of the States can be made until a provision in that behalf is made by or under legislative enactment of the appropriate legislature. Any rule so made will have effect subject to the provisions of the Act;
(iv) When there is a specific provision, unless there is a specific repeal of the existing law, the question of an implied repeal would not arise;
(v) The rules framed under the proviso to Article 309 of the Constitution would apply, generally speaking to Government servants appointed in connection with the affairs of the Union or, as the case may be, the States but the police force would be governed by the provisions of the Police Act 1861 and by the rules and administrative determinations referable to a specific source of power under the Police Act 1861;
(vi) Under Section 2 of the Police Act 1861, the State Government has been vested with power to determine the pay and all other conditions of service of members of the subordinate ranks of the police force. The determination within the meaning of Section 2 may be both by means of the exercise of the rule-making power as well as by an administrative direction. The Police Act 1861, being a complete Code as enunciated by the Constitution Bench of the Supreme Court, it occupies the entire field of the determination of service conditions. The power to determine all the conditions of service of members of the subordinate ranks of the police force is vested with the state government. The state government has the rule making power under Section 46 (2) (c) to carry out the purposes of the Act by framing rules;
(vii) Once a self-contained Code in the form of the Police Act has been enacted by the legislature and its continuance after the adoption of the Constitution is ensured by Article 313 and Article 372 of the Constitution, the field relating to recruitment and conditions of service of members of the police force in the State stands occupied by the legislation. Any rule or order relating to the determination of the conditions of service of the police force can be made only under the provisions of the Police Act or by the legislation enacted by the State legislature governing the service conditions of the police force. Section 2, Section 7 and Section 46 of the Police Act clearly evince an intent of the legislature to occupy the whole of the field relating to conditions of service of the police force;
(viii) The ratio of the decision of the Supreme Court in A B Krishna's case is that if the legislature has already made a law and the field is occupied, in such a situation, rules can be made under the law enacted by the legislature and not under Article 309;
(ix) The rules framed under a legislative enactment constitute delegated or subordinate legislation. The rules made under Article 309 are not of that nature. The rules which have been framed under Article 309 and the rules under an enactment of the state legislature are referable to two distinct sources of power. The rules made under the proviso to Article 309 are intended to deal with a situation where the President or the Governor, as the case may be, may regulate the recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the Union or, as the case may be, of the States until a provision in that behalf is made under an Act of the appropriate legislature under the Article. Though, the authority to frame rules in Article 309 vests with the Governor while the authority to frame subordinate legislation under the state enactment is vested with the State Government, the two jurisdictions are entirely different. One is referable to a transitional power which is vested in the President or the Governor, as the case may be, under the proviso to Article 309 while the other is traceable to the substantive power to frame subordinate legislation which is delegated to the State Government under a legislative enactment. Once a law has been enacted by the competent legislature and particularly in a situation where legislation, such as the Police Act is construed as a complete Code, it constitutes special statute governing the police force incorporating within its field, matters relating to appointment, dismissal, placement and all other steps required to reorganise the police and make it a more effective instrument for the prevention and detection of crime, as was held in Chandra Prakash Tiwari's case by the Supreme Court;
(x) In Chandra Prakash Tiwari, the Supreme Court after considering the consistent position of the State Department of Home, held that 'by reasons of the provisions of a special statute, namely, the Police Act read with the authorization contained therein by way of executive order, the Governor of Uttar Pradesh obviously did not in fact intend to apply the general law to all and sundry'16. In this background, it has been held that unless the general rules which are framed under Article 309 of the Constitution specifically repeal the special rules and unless there is a specific repeal of the existing law, the question of an implied repeal would not arise17. The rules framed under Article 309 are for Government servants in general while the police force would be guided by the provisions of the Police Act. This interpretation which has been placed by the Supreme Court has been held to be consistent with the position adopted in inter-ministerial correspondence of the State Government; and
(xi) The decision in Chandra Prakash Tiwari's case specifically deals with the Police Act and the applicability of the Rules framed under the proviso to Article 309 to members of the police force in the State of Uttar Pradesh. This decision of the Supreme Court has been duly followed by the Full Bench of this Court in Vijai Singh (supra) while holding that since the field of regulation of service conditions of members of the police force is occupied by the provisions of the Police Act and it continues to be in operation under Article 313, the Rules framed under Article 309 would not be attracted.
The Full Bench held that the provisions of the Police Act and the Rules, Regulations and Orders issued thereunder also apply to the officers of the PAC in view of Section 5 of the 1948 Act which provides that every member of the PAC upon his appointment and subject to continuance as a member of the force is deemed to be a Police Officer.
The Full Bench ultimately held that even though the 1975 Rules will not apply to temporary members of the force, but still the services of such temporary employees can be terminated as the power to appoint necessarily inheres within it the power to terminate the services. The observations of the Full Bench in this regard are as follows:-
"The Rules of 1975 framed under Article 309 have not been adopted or applied by the State Government specifically for the members of the police force by issuing an order under Section 2 or by framing a rule under Section 46 (2) (c) of the Police Act. The Rules of 1975 are hence not ipso facto applicable to temporary members of the police force. However, this does not mean that the services of such temporary employees cannot be terminated until rules or orders regulating them are made under Section 2 or Section 46 (2) (c) of the Police Act. The services of such a person being purely temporary are terminable by an action simplicitor when they are not required or where the person appointed is unsuitable for being continued in service. The power to appoint necessarily inheres within it the power to terminate services. To hold that the State Government which has the power to appoint a member of the police force on a temporary basis does not have the power to terminate such a person from service would be an absurdity. Nor can a person who has been appointed on a temporary basis, claim the protection of Regulation 541 which, on its plain terms, applies only to probationers. A person who is appointed on a temporary basis or in a temporary capacity is not a probationer. Chandra Prakash Shahi clearly was a case relating to a probationer whose services were sought to be terminated under the Rules of 1975 framed under the proviso to Article 309 of the Constitution which apply to government servants generally. The appellant in Chandra Prakash Shahi's case was not appointed on a temporary basis but was a probationer."
The Full Bench answered the reference holding that a services of a person who is appointed as a temporary police constable and who has not been placed on probation, can be terminated. Such a person is not governed by the provisions of Regulation 541 of the Police Regulations which applies to probationers. The 1975 Rules which have been framed under the proviso to Article 309 of the Constitution would not be applicable to members of the police force. However, the power to terminate the services of a person who has been appointed on a temporary basis inheres in the power to appoint and that mere mention of the Rules of 1975 will not invalidate an order of termination.
In view of the aforesaid decision of the Full Bench in Rajendra Singh, it is not possible to accept the contention of the learned Senior counsel for the writ petitioner that Regulation 541 of the Police Regulations would apply, nor is it possible to accept the contention of the learned Standing Counsel that the 1975 Rules would apply. As held by the Full Bench, the power to terminate the services of a temporary Police Constable inheres in the power to appoint.
The submission of the learned Senior Counsel for the appellant that the order dated 30 March 2017 is stigmatic in nature and it is not an order simpliciter dispensing with the services of the appellant cannot also be accepted. Reliance has been placed by learned Senior Counsel for the writ petitioner on the decision of the full Bench in Chandra Prakash Shahi. When on an overall assessment of the conduct of a temporary employee, the Authority is satisfied that it would not be in public interest to retain him service, it can either terminate the services of such a temporary employee or to take punitive action against him by holding a departmental proceeding. The writ petitioner, who was a temporary recruit, is said to have been involved in an incident which had caused great embarrassment to the Government of India and for which the Government of India had to offer public apology to the Indonesian Government and to the lady foreign delegate. The writ petitioner belonged to a disciplined force. A temporary employee does not have a right to the post and his services can be dispensed with if it is not considered desirable to continue him in service. The order dated 30 March 1993 mentions that the services of the appellant are no longer required. It is, therefore, not possible to accept the contention of the learned Senior Counsel for the writ petitioner that order dispensing the services of the writ petitioner is stigmatic in nature.
In any view of the matter, the nature of the allegations that have been made against the writ petitioner are such that it is not a fit case for interference under Article 226 of the Constitution.
The Writ Petition is, accordingly, dismissed.
Order Date :- 8.5.2017 Akram (Dilip Gupta,J.) (Vinod Kumar Misra,J.)