Delhi High Court
The Secretary, Ministry Of Home Affairs ... vs Ex-Subedar Ansuya Parshad on 13 August, 2001
Equivalent citations: 94(2001)DLT611, 2002(61)DRJ109
Author: Dalveer Bhandari
Bench: Dalveer Bhandari, R.C. Jain
ORDER Dalveer Bhandari, J.
1. This appeal is directed against the judgment of the learned Single Judge dated 15.9.1995.
2. Brief facts which are necessary to dispose of this appeal are recapitulated as under:
The respondent/writ petitioner was appointed as Naik in Central Reserve Police Force (in short CRPF) on 28.9.1959. He was promoted as Subedar (Inspector) on 30.1.1975. The promotion of the respondent to the post of Inspector was made by the Commandant with prior approval of the Inspector General of Police as required by Rule 7(B) of the Central Reserve Police Force Rules.
4. The respondent was charged with misconduct and a regular departmental inquiry was held against him under the CRPF Rules and on the conclusion of the departmental inquiry disciplinary authority considered the case of the respondent and by an order dated 26.6.1980 passed by the Deputy Inspector General of Police the respondent was removed from service.
5. The respondent preferred a statutory appeal to the Inspector General of Police under the provisions of Rule 28 of the CRPF Rules. The statutory appeal was dismissed and thereafter the respondent filed a Civil Writ Petition No. 2559/81 before this Court. The learned Single Judge after hearing the parties allowed the writ petition on 15.9.1995 and quashed the order of removal. The court also directed that the respondent shall be entitled to reinstatement with all consequential benefits. The learned Single Judge observed that when the scheme of rules is such that either in case of appointment or in case of promotion the prior approval of the Inspector General of Police is imperative under the Rules for such post, the natural corollary, which follows, is that any termination without the approval of Inspector General of Police by the Deputy Inspector General of Police would be bad in law. The learned Single Judge also held that the Deputy Inspector General of Police generally could not remove the respondent without the prior approval of the Inspector General of Police. The appellant/Union of India aggrieved by the judgment and order of the learned Single Judge preferred a Letters Patent Appeal before this Court.
6. Mr. Jayant Bhushan, learned counsel appearing for the appellants, submitted that the order of removal passed against the respondent is in consonance with the provisions of the Act and the Rules framed there under. He placed reliance on Section 3 of the CRPF Act to demonstrate that CRPF is an armed force maintained by the Central Government and Article 311 has no application. It has been conclusively determined by their Lordship of the Supreme Court in the case titled Akhilesh Prasad vs. Union of Territory of Mizoram that CRPF is part of the armed forces.
7. Mr. Bhushan submitted that the petitioner was fully covered under Rule 4(b) of the CRPF Rules. Rule 7(b) reads as under:
7(b) The authority to make the appointments to the various non-gazetted ranks shall be the Commandant, provided that in case of Sub-Inspectors and Subedar (Inspector) prior approval of the Deputy Inspector General of Police and of the Inspector General respectively shall be obtained.
8. He submitted that the appointment of Subedar (Inspector) is made by the Commandant and Commandant is the appointing authority. The mere fact that prior approval of the Inspector General of Police is necessary would not make the Inspector General of Police as the appointing authority. The respondent was removed by the Deputy Inspector General of Police according to Rule 27 of the CRPF Rules. Rule 27 reads as under:
27. Procedure for the award of punishments.- (a) [The punishments shown as in items 1 to 11 in column 2] of the Table below may be inflicted on non-gazetted officers and men of the various ranks shown in each of the headings of columns 3 to 6, by the authorities named below such headings under the conditions mentioned in column 7.
9. In the table of Section 27 in item No. 1 it is clear that Subedar (Inspector) can be dismissed or removed from the force by the Deputy Inspector General. The Deputy Inspector General is certainly higher than the Commandant, therefore, there is no infirmity in the removal order because the same was passed by the Deputy Inspector General.
10. Mr. Jayant Bhushan placed reliance on State of Assam vs. Kripanath Sarma & others . In this case the question arose whether the Deputy Inspector of Schools, in his capacity as the Assistant Secretary of the State Board, could terminate the service of the respondents in view of Section 14 (3)(iii) of the Act read with Section 18 of the 1915 Act. The Hon'ble Supreme Court in the said case has taken the view that as the Assistant Secretary did not have complete power to appoint teachers and could only do so on the advice of the Advisory Board. The Supreme Court held that even assuming that the recommendations of the Committee is necessary before appointment is made by the Assistant Secretary, the fact still remains that it is not the Committee which appoints, the appointment is made only by the Assistant Secretary. On the strength of this judgment, Mr. Jayant Bhushan submitted that even assuming that prior approval of Inspector General of Police is necessary that would not mean that the Inspector General of Police would become the appointing authority. The Commandant is the appointing authority according to rules and in all circumstances the Commandant would remain the appointing authority.
11. Learned counsel for the respondent submitted that Rule 27 is contrary to Rule 7(b) and Article 311 of the Constitution of India. Learned counsel for the respondent fairly conceded that the validity of Rule 27 was not challenged in the writ petition and consequently the learned Single Judge did not have any occasion to decide this controversy. In this view of the matter,it is not necessary to determine the validity of Section 27 in this appeal.
12. Learned counsel for the respondent placed reliance on the case titled The State of Bihar vs. Abdul Majid . In this case the respondent was dismissed by the D.I.G. of Police, though he was appointed by the Inspector General of Police. According to the Supreme Court this was clearly contrary to the provisions of Section 240(3), Government of India Act, 1935 which provides that no person shall be dismissed from the service of His Majesty by an authority subordinate to that by which he was appointed.
13. Learned counsel for the respondent has also placed reliance on the case titled Shiva Bhikshuk Mishra vs. State of Bihar and ors. . The same view has been taken in this case also.
14. Learned counsel for the respondent also placed reliance on the case titled Nawab Husain vs. State of U.P. . In this case also the plaintiff was appointed as the Sub-Inspector of Police and later on confirmed by the Inspector General of Police but he was dismissed by the Deputy Inspector General of Police. According to the ratio of this judgment, the dismissal was void and ultra vires and violative of Article 311(1) of the Constitution of India.
15. We have heard the learned counsel for the parties at length and carefully considered the rival submissions made at bar. Admittedly the validity of Rule 27 of the CRPF Rules was not challenged in these proceedings. Therefore, it is not necessary to determine this controversy.
16. According to Rule 7(b), the appointing authority is the Commandant and the respondent was removed from service by the Deputy Inspector General of Police who is higher in rank than Commandant. Therefore, there is no illegality in the order passed by the Deputy Inspector General of Police.
17. We are also of the opinion that just because the approval of the Inspector General of Police is required it would not change the appointing authority who is the Commandant in the instant case. Once the respondent was appointed by the Commandant he could be removed from service by the Deputy Inspector General who is admittedly higher in rank than the appointing authority, i.e., the Commandant.
18. Before we part with this case we are constrained to observe that when we asked the counsel for Union of India to produce the original record, after obtaining the instructions, he submitted that the original record of this case has been weeded out or destroyed. We are quite astonished how the original record of a pending case was weeded out or destroyed? The Union of India and other authorities are directed to issue general instructions to all concerned that the records pertaining to the pending case in courts ought not to be weeded out or destroyed. The process of weeding out records can be undertaken only after the cases are finally decided by the Hon'ble Supreme Court.
19. In view of our conclusion, this appeal is allowed and the judgment of the learned Single Judge dated 15.9.1995 passed in CWP No. 2559/81 is hereby set aside. In the facts and circumstances of the present case, the parties are directed to bear their own costs.