Rajasthan High Court - Jaipur
Prem Singh vs State &Ors on 20 September, 2012
Bench: Arun Mishra, Ajay Rastogi, Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR 1. S.B. Civil Writ Petition No.331/1995 Prem Singh V/s State of Rajathan & ors. 2. S.B. Civil Writ Petition No.3970/2002 Rishal Singh V/s State of Rajasthan & ors. 3. D.B. Civil Review Petition No.57/2009 The State of Rajasthan & ors. V/s Radhey Shyam Reportable Date when the order ::- 28.08.2012 was reserved. Date when the order was pronounced ::- 20.9.2012 PRESENT HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE AJAY RASTOGI HON'BLE MR. JUSTICE MOHAMMAD RAFIQ Mr. G.C. Gupta ) Mr. A.K. Bhargava )- for the petitioners. Mr. G.S. Bapna, Senior Advocate ) & Advocate General with ) Mr. Veyankatesh Garg )-for the State Mr. Dinesh Yadav, Addl.Advocate General ) ORDER BY THE COURT (Per Hon'ble Arun Mishra, CJ)
The question arises for consideration is with respect to power of the Superintendent of Police to impose penalty of removal or dismissal specified in Rule 14 (vi) & (vii) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the Rules of 1958). Following question has been referred to the Larger Bench for consideration by one of us Mohammad Rafiq,J on 7.12.2009:-
Whether in view of the note (ii) below Rule 15 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958, Superintendent of Police is competent to impose the penalty of removal or dismissal specified respectively in clauses (vi) and (vii) of Rule 14 thereof?
In S.B. Civil Writ Petition No.331/1995 Prem Singh V/s State of Rajathan & ors. , the petitioner has questioned the order of dismissal from service passed by the Superintendent of Police, Jaipur City and the order passed by the Dy.Inspector General of Police, Jaipur dismissing appeal upholding the penalty of dismissal from service. It is not in dispute that the petitioner was appointed as Constable by the Superintendent of Police and he was confirmed also.
In S.B. Civil Writ Petition No.3970/2002 Rishal Singh V/s State of Rajasthan & ors., the petitioner has also questioned the order of dismissal from service passed by the Commandant and the order passed by the Dy.Inspector General of Police dismissing the appeal upholding the order of dismissal.
In D.B. Civil Review Petition No.57/2009 The State of Rajasthan & ors. V/s Radhey Shyam, the State of Rajathan has sought review of the judgment dated 5.9.2008 passed by the Division Bench of this Court in D.B.Special Appeal (Writ) No.403/2008.
It was submitted by the learned counsel appearing on behalf of the petitioners that the Rule 14 of Rules of 1958 prescribes various penalties which can be inflicted upon employees. Rule 15 of the Rules of 1958 deals with the Disciplinary Authorities and on the strength of Rule 15, it was submitted that only the Head of the Department or the authority specially empowered by the Head of the Department with the approval of the State Government, shall be the Disciplinary Authority in respect of the Subordinate and Ministerial Service. It was also submitted that the State Government vide order dated 17th October, 1986 in exercise of the power conferred under Rule 15 (1) of the Rules of 1958 has empowered all Regional and District Level Officers, as specified by the concerned Administrative Departments, to impose penalties upto the stoppage of two grade increments without cumulative effect in respect of Members of Subordinate Service Officers directly under their control. Thus, power to dismiss/remove is conferred upon them. The petitioners have also relied upon Rule 12 of the Rules of 1958 and contended that under Rule 12(2), all appointments to the Subordinate and Ministerial Services shall be made by the Head of Department or by any authority specially empowered by the Head of Department with the approval of Government in that behalf, thus, Appointing Authority has to be treated as Head of Department and the Head of Department has not specially empowered the Superintendent of Police to be an authority for purpose of Rule 12(2) of the Rules of 1958. It was also submitted that though the Rajasthan Police Subordinate Service Rules, 1974 (hereinafter referred to as the Rules of 1974) earlier regulated the recruitment and terms and conditions of the services of persons appointed to the Rajasthan Police Subordinate Service and under Rule 2(a), Superintendent of Police/Commandant is the Appointing Authority in respect of Assistant Sub-Inspectors, Head Constables and Constables, however with respect to the disciplinary matters, Rules of 1958 have to prevail. Similarly, it was also submitted that under the Rajasthan Police Subordinate Service) Rules, 1989 (hereinafter referred to as the Rules of 1989), Superintendent of Police/Commandant or an Officer of equivalent rank is Appointing Authority in respect of Assistant Sub-Inspectors/Head Constables & Constables as provided in Rule 2(a) (iii), however, the same would not confer the disciplinary power to impose penalty of dismissal or removal from service and in this regard, Rules of 1958 read with the Rajasthan Civil Services (Conduct) Rules, 1971 (hereinafter referred to as the Rules of 1971) have to prevail. Under the Rules of 1971, the Appointing Authority shall have the same meaning assigned to it under the Rules of 1958. It was also submitted that Article 311(1) also cannot come to the rescue of the respondents as the power to impose penalty of dismissal or removal can be conferred on the Superior Authority than the Appointing Authority. In substance, the submission of the learned counsel for the petitioners is that Director General of Police could have ordered the removal or dismissal, not the Superintendent of Police; Superintendent of Police could not have imposed penalty of more than withholding of two annual grade increments without cumulative effect being District Level Officer in terms of the order dated 17.10.1986. Reliance has been placed on the various decisions which will be discussed later.
Per contra, the learned Advocate General appearing on behalf of State of Rajasthan has urged that the Rules of 1958 have been framed in exercise of the powers conferred under Article 309 of the Constitution and under Rule 2(a) 'Appointing Authority' has been defined in relation to a Government servant which means the authority empowered to make appointment. Rule 2(c) of the Rules of 1958 defines 'Disciplinary Authority which means the authority competent to impose penalty on the Government servant. The Disciplinary Authority includes authority empowered to make appointment to the service of which the Government servant is for the time being a member or to such grade or post, as the case may be. It was also submitted by the learned Advocate General that so far as the police department is concerned, Constables are appointed at present under the Rules of 1989 framed under Article 309 of the Constitution; Rule 2(a) of the Rules of 1989 defines Appointing Authority and as per Rule 2(a)(iii), for the posts of Assistant Sub-Inspectors/Head Constables and Constables in Rule 4, Section I, II and IV, the Superintendent of Police/Commandant or an officer of the equivalent rank shall be the Appointing Authority and as per Rule 2(a)(vi) for the posts of Constables and Head Constables in General Duties Branch of Police Tele Communications and Mechanical Transport Branch in the District, the Superintendent of Police of District concerned shall be the Appointing Authority. Proviso to the said Rule 2(a) provides that all authorities superior to the Appointing Authority in the Police Establishment mentioned in Rule 2(a) shall also be deemed to be the Appointing Authority. It was further submitted that earlier the appointment of Constables/Head Constables was governed by the Rules of 1974 in which also the Appointing Authority of Assistant Sub-Inspectors, Head Constables and Constables was Superintendent of Police/Commandant as provided under Rule 2(a) of the Rules of 1974.
The learned Advocate General further submitted that in exercise of the powers conferred under note (i) of Rule 15(1) of the Rules of 1958, the Head of Department (Director General-cum-I.G. of Police) with prior approval of the State Government, had issued order dated 21/23.12.1985 empowering Superintendent of Police/Officers of equivalent rank to impose penalty of removal or dismissal from service specified in clauses (vi) and (vii) of Rule 14 of the Rules of 1958 and that order has not been superseded vide order dated 17th October, 1986 and the same has also been clarified by the State Government in the circular dated 10.9.2002; the order dated 17th October, 1986 has no effect upon the power of the Appointing Authority as it was in fact issued under Rule 15(1) note (ii) of the Rules of 1958 and it was not applicable to the Department of Police also; the Head of Department is not the Appointing Authority for Assistant Sub-Inspectors, Head Constables and Constables. It was also submitted by learned Advocate General that note (i) of Rule 15(1) of the Rules of 1958 deals with the power of Appointing Authority as Disciplinary Authority, whereas note (ii) of Rule 15(1) pertains to authority other than Appointing Authority and such authority cannot impose penalty of removal and dismissal as enumerated in clauses (vi) & (vii) of Rule 14 of the Rules of 1958. Reliance has also been placed on Article 311(1) of the Constitution of India to contend that the Appointing Authority can inflict the punishment of removal and dismissal from service. The order dated 21/23.12.1985 has been issued by the Director General-cum-I.G.of Police with the prior approval of the State Government, though it was not necessary to be issued and under the aforesaid order, in respect of Head Constables and Constables, the Superintendent of Police/officers of equivalent rank were empowered to impose all penalties under Rule 14(i) to (vii) of the Rules of 1958, whereas Addl.SP was empowered to impose all minor penalties under Rule 14(i) to (iii) of the Rules of 1958 and Dy.SP/officers of equivalent rank were empowered to impose penalty of censure under Rule 14(i) of the Rules of 1958. The order dated 21/23.12.1985 was given retrospective effect from 16.8.1982. The Single Bench of this Court in the case of Gopikrishna V/s State of Rajasthan (RLR 1987(1) 889) has held that the said order dated 21/23.12.1985 cannot be given retrospective effect, however, its prospective operation was not adversely commented upon. The order dated 17.10.1986 was only for controlling officers and it does not in any way abridge or curtail the powers of the Appointing Authority as Disciplinary Authority. Another order dated 4.10.1991 was issued by the Director General of Police in which it was stated that senior police officers posted at Police Headquarter shall not place under suspension any police personnel who is not directly subordinate to them and if suspension is essential then the matter will be referred to the Director General of Police for approval. The said order also does not have any bearing upon the power of the Appointing Authority to act as Disciplinary Authority given under the Rules of 1958 and the Rules of 1989. Reliance has been placed on Section 16 of the General Clauses Act, 1958 as it also empowers the Appointing Authority to inflict the penalties of removal and dismissal from service as enumerated under clauses (vi) and (vii) of Rule 14 of the Rules of 1958. Even if the Selection Board consisted of higher authority than the Superintendent of Police and he is one of the members and since he has issued appointment order, he has to be treated as Appointing Authority and submission to the contrary is untenable. Rules in question framed under Article 309 of the Constitution do not in any manner infringe any rights guaranteed under Article 311 of the Constitution of India. The power of Appointing Authority is derived not from Rules, but also from Article 311 of the Constitution. Reliance has also been placed on the Division Bench decision of this Court in Manohar Singh V/s State of Rajasthan (D.B.Special Appeal (Writ) No.929/2007 decided on 19.5.2009) in which it has been held that Superintendent of Police being Appointing Authority is competent to impose penalty of dismissal or removal in terms of Article 311 of the Constitution of India.
To decide the question involved as to power of the Superintendent of Police, who is Appointing Authority, to order removal or dismissal as specified in clauses (vi) and (vii) of Rule 14 of the Rules of 1958, it is necessary to consider the provisions contained in the Rules of 1958. The 'Appointing Authority defined in Rule 2(a) in relation to a Government servant, means the authority empowered to make appointments to the service of which the Government servant is for the time being a member or to the grade of the service which the Government servant is for the time being included; or the authority empowered to make appointments to the post which the Government for the time being holds; or the authority which appointed the Government to such Service, grade or post, as the case may be; or where the Government Servant, having been a permanent member of any other service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that service or to any grade in that Service or to any grade in that Service or to the post, whichever authority is the highest authority provided that where Government or the Head of Department has delegated the powers to a subordinate authority; the Head of the Department concerned shall be the Appointing Authority for the purpose of rule 23(2) (a) (b). Rule 2(a) of the Rules of 1958 is quoted below;-
2. Interpretation. In these rules, unless the context otherwise requires
(a) "Appointing Authority" in relation to a Government servant means
(i) the authority empowered to make appointments to the service of which the Government Servant is for the time being a member or to the grade of the service in which the Government Servant is for the time being included, or
(ii) the authority empowered to make appointments to the post which the Government Servant for the time being holds, or
(iii) the authority which appointed the Government Servant to such Service, grade or post, as the case may be, or
(iv) where the Government Servant, having been a permanent member of any other service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that service or to any grade in that Service or to that post, whichever authority is the highest authority:
Provided that where Government or the Head of Department has delegated the powers to a subordinate authority; the Head of the Department concerned shall be the Appointing Authority for the purpose of rule 23(2) (a) (b).
Rule 12 of the Rules of 1958 deals with the Appointing Authorities; Rule 12(2) provides that all appointments to the Subordinate and Ministerial Services shall be made by the Head of Department or by any authority specifically empowered by Head of Department with the approval of Government in that behalf. Rule 12 is quoted below:-
12. (1) All appointments to a State Service shall be made by the Government or by any authority specially empowered by the Government in that behalf.
(2) All appointments to the Subordinate and Ministerial Services shall be made by the Head of Department or by any authority specially empowered by the Head of Department with the approval of Government in that behalf.
(3) All appointments to Class IV Services shall be made by the Head of Office subject to the rules and instructions issued by the Head of Department in that behalf.
It is not disputed that the Appointing Authority under the Rajasthan Police Subordinate Service Rules, 1966 (hereinafter referred to as the Rules of 1966) for Head Constables and Constables was Superintendent of Police as provided in Rule 2(a). Rule 2(a) of the Rules of 1966 is quoted below:-
2. Definitions.- In these rules, unless the context othewise requires.-
(a) Appointing Authority means the Inspector General of Police in respect of Inspectors; the Deputy Inspector General of Police in respect of Sub Inspectors and Assistant Sub Inspectors; the Superintendent of Police, Police Radio Organization in respect of Assistant Sub-Inspectors of Police Radio Organization; and Superintendent of Police in respect of Head Constables and Constables and includes persons who acts as such under proper authority during the absence of these officers.
Later on, the Rules of 1966 were substituted by the Rules of 1974, which came into force with effect from 28th November, 1974. Rule 2(a) of the Rules of 1974 provides that Appointing Authority in respect of Assistant Sub-Inspectors, Head Constables and Constable was Superintendent of Police/Commandant. Rule 2(a) of the Rules of 1974 is quoted below:-
2. Definitions:- In these Rules, unless the context otherwise requires:-
(a) Appointing Authority means the Inspector General of Police in respect of Inspector/Company Commanders; Deputy Inspector general of Police in respect of Sub Inspector/Platoon Commanders; the Director, State Police Wireless in respect of Sub Inspector, Supervisors, Sub Inspectors, Assistant Sub Inspectors, Head Constables and Constables of the Police, Wireless Organization and Superintendent of Police/Commandant in respect of Assistant Sub Inspectors, Head Constables and Constables.
The Rules of 1974 were also substituted later on by the Rules of 1989 and as per Rule 2(a)(iii), the Appointing Authority for the posts of Assistant Sub-Inspectors/Head Constables and Constables was Superintendent of Police/Commandant or an officer of the equivalent rank. Rule 2(a) is quoted below:-
2. Definitions.- In these Rules, unless the context otherwise requires:-
(a) Appointing Authority means:-
(i) For the posts of Inspectors/Company Commanders.- The Director General cum Inspector General of Police.
(ii) For the posts of Sub-Inspectors/Platoon Commanders/Supervisors and Sub-Inspectors of Police Tele-Communications. The Dy.I.G.of Police (Hqrs.) or an officer of the equivalent rank.-
(iii) For the posts of Assistant Sub-Inspector/ Head Constables & Constables in Rule 4, Section I, II & IV.- The Supdt. of Police/ Commandant or an officer of the equivalent rank.
(iv) For the posts of Assistant Sub-Inspectors in Rule- 4, Section III:- The Director, Police Telecommunications.
(v) For the posts of Constables and Head Constables, other than those belonging to General Duties Branch, in rule 4, Section III.- S.P. Police Telecommunications.
(vi) For the posts of Constables & Head Constables, in General Duties Branch of Police Tele Communications and Mechanical Transport Branch in the District.- The Supdt. of Police District concerned .
Provided that all authorities superior to the Appointing Authority, in the Police Establishment, mentioned in rule (2) (a) shall also be deemed to be the Appointing Authority;
In the Rules of 1971 also, the Appointing Authority has the same meaning as provided in the Rules of 1958 as is evident from Rule 2(a), which is quoted below:-
2. Definitions.- In these rules, unless the context otherwise requires-
(a) Appointing Authority shall have the meaning assigned to it in the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958.
Thus, from the definition of Appointing Authority as contained in the Rules of 1958, Rules of 1966, Rules of 1971, Rules of 1974 and Rules of 1989, it is apparent that for the post of Assistant Sub-Inspectors, Head Constables and Constables, the Appointing Authority is the Superintendent of Police/Commandant or an officer of the equivalent rank.
Since the question of imposition of penalty is involved, Rules of 1958 come into play. As already stated above, 'Appointing Authority has been defined in Rule 2(a) of the Rules of 1958; Rule 12(2) provides that all appointments to the Subordinate and Ministerial Services shall be made by the Head of Department or by any authority specially empowered by the Head of Department with the approval of Government in that behalf. Rule 14 provides for seven kinds of penalties, which can be imposed upon government servant. The relevant portion of Rule 14 is quoted below:-
14. Nature of Penalties.The following penalties may, for good and sufficient reasons, which shall be recorded, and as hereinafter provided, be imposed on a Government servant, namely :
(i) censure ;
(ii) withholding of increments or promotion;
(iii) recovery from pay of the whole or part of any pecuniary loss caused to the Government by negligence or breach of any law, rule or order ;
(iv) reduction to a lower service, grade or post; or to a lower time scale or to a lower stage in the time scale or in the case of pension to an amount lower than that due under the rules ;
(v) compulsory retirement on proportionate pension ;
(vi) removal from service which shall ordinarily not be a disqualification for further employment ;
(vii) dismissal from service which shall ordinarily be a disqualification for further employment......
Rule 15 of the Rules of 1958 deals with Disciplinary Authorities, it provides that in respect of the Subordinate and Ministerial Services, with which we are concerned, the Head of the Department or the authority specially empowered by the Head of the Department with the approval of the Government, shall be the Disciplinary Authority. Note (i) of Rule 15 (1) makes it clear that the authority specially empowered to make appointment to a Service under Rule 12 of these Rules shall have power to inflict any of the penalties specified in Rule 14. Thus, the Appointing Authority is empowered, as per Note (i) of Rule 15(1) of the Rules of 1958, to impose all penalties minor as well as major as provided in Rule 14. At the same time, the power of any other authority except Appointing Authority has been dealt with in Note (ii) of Rule 15(1) of the Rules of 1958 which provides that the State Government or the Head of the Department, as the case may be, shall not empower under this Rule any other authority to impose penalties specified in clause (vi) and (vii) of Rule 14. Clause (vi) of Rule 14 contains the penalty of removal from service which shall ordinarily not be a disqualification for further employment and clause (vii) of Rule 14 contains the penalty of dismissal from service which shall ordinarily be a disqualification for further employment. Rule 15 (1) is quoted below:-
15. Disciplinary Authorities. (1) In respect of the State Services the Government or the authority specially empowered by the Government in that behalf, in respect of the Subordinate and Ministerial Services, the Head of Department or the authority specially empowered by the Head of Department with the approval of the Government and in respect of class IV Services the Head of Office shall be the disciplinary authority.
Note :
(i) The authority specially empowered to make appointment to a service under rule 12 of these rules shall have power to inflict any of the penalties specified in rule 14.
(ii) The State Government or the Head of Department as the case may be shall not empower under this rule any other authority to impose penalties specified in clause (vi) and (vii) of rule 14.
It is apparent from a bare reading of Rule 15 of the Rules of 1958 that with respect to Subordinate and Ministerial Staff, the Head of the Department or the authority specially empowered by the Head of the Department with the approval of the Government is the Disciplinary Authority. However, Note (i) of Rule 15(1) makes it clear that the Appointing Authority empowered to make appointment to a Service under Rule 12 shall have the power to inflict any of the penalties specified in Rule 14. Rule 12(2) provides that all appointments to the Subordinate and Ministerial services shall be made by the Head of Department or by any authority specially empowered by the Head of Department with the approval of Government in that behalf. The definition of 'Appointing Authority in relation to a Government servant provided in Rule 2(a) of the Rules of 1958 also comes into play. Rule 2(a) provides that Appointing Authority means the authority empowered to make appointment to the service of which the Government servant is for the time being a member or to the grade of the service in which the government servant is for the time being included or the authority which appointed the Government servant to such service, grade or post, as the case may be and as per Rule 2(a)(iii) of the Rules of 1989, the Appointing Authority in respect of Assistant Sub-Inspectors/Head Constables/Constables is the Superintendent of Police/Commandant or an officer of the equivalent rank. The authority empowered to make appointment to the post, which the petitioners hold, is the Superintendent of Police/Commandant or the officer of the equivalent rank as is evident from the Rules of 1958, Rules of 1966, Rules of 1971, Rules of 1974 and Rules of 1989.
In exercise of the powers conferred under Rule 15(1) of the Rules of 1958, the Director General-cum-I. G. of Police, Rajasthan, Jaipur vide order dated 21/23.12.1985 with the prior approval of the State Government vide letter No.F.9(38)Home/I/82 dated 11.12.1985 and even no.dated 17.12.1985, has made delegation of disciplinary power to various police officers of the State Police with effect from 16.8.1982 and in respect of Head Constables and Constables, the Superintendent of Police/Officers of equivalent rank have been empowered to impose all penalties under Rule 14 [(i) to (vii)] of the Rules of 1958; Addl. Superintendent of Police has been empowered to impose all minor penalties under Rule 14[(i) to (iii)] of the Rules of 1958 i.e. Censure, withholding of increments or promotion, and recovery from pay of the whole or part of any pecuniary loss caused to the Government by negligence or breach of any law, rule or order; and Dy. Superintendent of Police/Officers of equivalent rank have been empowered to impose penalty of censure under Rule 14(i) of the Rules of 1958. The relevant portion of order dated 21/23.12.1985 is quoted below:-
In exercise of the powers conferred under Rule 15(1) of the Rajasthan Civil Services (C.C. & A) Rules, 1958, I, P.C. Misra, Director General-cum-I.G. Of Police, Rajathan, Jaipur, do hereby delegate the following disciplinary power to the various police officers of the State Police with effect from 16.8.1982.
This delegation under Rule 15(1) of the said Rules bears approval of the State Government as conveyed vide their letters No.F.9(38) Home/I/82, dated 11.12.1985 and of even No. dated 17.12.1985.
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S.No. Rank Disciplinary Authority Penalty U/R 14 C.C. & A. Rules.
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4. H.Cs./Constables (a) SsP./Officers All penalties U/R 14 of equivalent (i to vii) CC and A rank. Rules.
(b) Addl.Ss.P. All minor penalties U/R 14 (i to iii) CC and A Rules. (c) Dy.S.P./ Censure U/R 14(i) CC Officers of and A Rules. equivalent rank.
Though Appointing Authority was having power under Note (i) of Rule 15(1) of the Rules of 1958, but with abundant caution, the disciplinary power was specifically conferred by the Head of the Department on the Superintendent of Police/Commandant or officer of equivalent rank to impose all penalties under clause (i) to (vii) of Rule 14 of the Rules of 1958 in respect of Head Constables/Constables. Thus, considering the definition of Appointing Authority contained in the Rules of 1958, Rules of 1966, Rules of 1971, Rules of 1974 and Rules of 1989 alongwith order dated 21/23.12.1985, the Superintendent of Police is having the power to impose all penalties as prescribed in Rule 14 of the Rules of 1958 in respect of Head Constables and Constables including removal from service which shall ordinarily not be a disqualification for further employment as contained in clause (vi) and dismissal from service which shall ordinarily be a disqualification for further employment as contained in clause (vii) of Rule 14 of the Rules of 1958.
The petitioners have placed reliance upon the order dated 17.10.1986 issued by the Government of Rajasthan, Department of Personnel empowering all Regional and District Level Officers to impose penalties upto the stoppage of two grade increments (without cumulative effect) in respect of the members of the subordinate service officers directly under their control. The said order dated 17.10.1986 is quoted below:-
In supersession of all the orders issued in this behalf by respective authorities and in exercise of the power conferred by sub-rule (1) of Rule 15 of the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958, the Government hereby empower all Regional and District Level Officers, as specified by the concerned Administrative Departments, to impose penalties upto the stoppage of two grade increments (without cumulative effect) in respect of the members of the subordinate service officers directly under their control.
The aforesaid order dated 17.10.1986 did not deal with the powers of the Appointing Authority at all. The intendment of the order was to confer power on the Regional and District Level Officers to impose penalty upto the stoppage of two grade increments without cumulative effect in respect of the members of the subordinate service officers directly under their control. This conferment of power with the Regional and District Level Officers was with respect to members of subordinate service officers directly under their control, it does not in any manner take away the power of the Appointing Authority as defined under the Rules of 1958, Rules of 1966, Rules of 1971, Rules of 1974 and Rules of 1989 or of the Disciplinary Authorities as defined in Rule 15(1) note (i) of the Rules of 1958 to impose the penalties as specified in Rule 14 of the Rules of 1958. It is also apparent that once Government has framed the Rules of 1989, obviously, the provisions contained in Rule 12(2) of the Rules of 1958 have to be interpreted harmoniously and considering the definition of Appointing Authority contained in Rule 2(a) of the Rules of 1958, the 'Appointing Authority provided in Rule 2(a) of the Rules of 1989 has to be treated the Appointing Authority under Rule 2(a) of the Rules of 1958 as well as for the purpose of Rule 12(2) of the Rules of 1958 considering harmonious interpretation of the Rules otherwise anomalous results may occur. Where the State Government has prescribed the Appointing Authority under the relevant Rules framed under Article 309 of the Constitution of India and has conferred the power of appointment on a particular level of authority, Head of Department cannot appoint any other officer to order appointment under Rule 12 of the Rules of 1958; once State Government has prescribed Appointing Authority under the Rules of 1989 framed under Article 309 of the Constitution, that has to prevail and such Appointing Authority has to be treated Appointing Authority for the purpose of Rule 12(2) of the Rules of 1958 also. Approval of the State Government is also necessary in Rule 12(2) of the Rules of 1958 and power cannot be exercised independently by Head of Department. Thus, harmonious interpretation of the Rules of 1958, Rules of 1966, Rules of 1971, Rules of 1974 and Rules of 1989 makes it crystal clear that Appointing Authority is fully empowered to impose penalty of removal or dismissal from service as envisaged in clauses (vi) and (vii) of Rule 14 of the Rules of 1958.
It is also apparent from the order dated 17th October, 1986 that it has not restricted the power of the Appointing Authority which is existing in the Rules otherwise the language of the order would have been different. A perusal of the said order makes it clear that the use of word empower is of significance, it relates to the conferment of the power and it does not in any manner take away the power of the Appointing Authority which was already existing and this has been made clear subsequently by the State Government while issuing clarification vide circular dated 10th September, 2002. Though it was not necessary to issue such circular as the language of the order dated 17th October, 1986 was clear, however, the circular dated 10th September, 2002 set at rest any kind of doubt with respect to aforesaid interpretation of the order dated 17.10.1986. It has been specifically mentioned in the circular dated 10th September, 2002 that existing powers of the Disciplinary Authority and Appointing Authority were not taken away by the order dated 17th October, 1986. however, it was issued in order to empower the Regional and District Level Officers to impose penalties upto the stoppage of two grade increments without cumulative effect in respect of the members of the subordinate service officers directly under their control, but the power of the Appointing Authority or Disciplinary Authority has not been taken away or abridged in any manner whatsoever. It was also clarified that Appointing Authority and Disciplinary Authority were empowered to inflict any of the penalties enumerated in Rule 14 of the Rules of 1958 in the disciplinary proceedings under Rules 16 and 17 of the Rules of 1958. The circular dated 10.9.2002 is quoted below:-
"??????? ????? ?? ???????? ???? ?????? 17.10.1986 ?????? ???????? ????? ?????? (????????, ???????? ??? ????) ???? 1958?? ???? 15 ?? ?? ???? (1) ?? ???????? ??????? ????????? ??????? ?????? ??? ??????????? ????? ????????? ??? ???? ?????? ?????????? ??, ??????????: ???? ??????????? ??????????? ?? ??????? ?? ?????? ??? ?? ??????? ????????????? ???? ????? ?????? ?? ????? ?? ?? ????????? ???????? ???? ?? ??? ????? ???? ???
?? ?????? ??? ??? ??????? ?????? ?? ?????????? ????? ?? ??? ?? ?? ????????? ???????? ?? ?? ?????? ?? ????????????? ???? ???? ??? ????????? ???? ?? ????????? ?? ??????? ??????????? ?? ???????? ??? ????????? ?????????? ???, ?? ??? ???????? ?? ???? ?????? ??????
?? ????? ??? ?? ?????? ???? ?????? ?? ???? ???? ?????? 17-10-1986?? ?????? ????????? ?????????? ?? ??? ???????? ?? ???????? ???? ???? ??? ???
???????? ?? ????????????? ?? ???????? ???? ???? ?????? 17.10.1986 ?? ?????? ?? ????/????????? ?????????? ?? ???? ??????????? ??????? ???? ?? ??????? ?? ????? ??? ???????????? ?? ??????? ???????????? ???? ????? ?????? ?? ????? ?? ?? ?????? ???????? ???? ?? ???? ????? ??????? ?? ?? ???????? ??????? ???? ???
?? ?? ?????? ?????????? ?? ????/????????? ???? ?? ???????? ??? ????????? ????????????? ?? ??????? ??? ???? ???? ?????? 17.10.1986 ?? ??????????? ???? ?? ?? ?? ???????? ????? ?????? (????????, ???????? ??? ????) ???? 1958?? ???? 16 ??? 17 ?? ???????? ????????? ????????? ??? ???? 14 ?? ???????? ??? ?? ?????? ???????? ???? ??? ????? ???"
Thus, the submission raised by the learned counsel appearing on behalf of the petitioners that Appointing Authority cannot inflict the penalty of removal or dismissal from service as envisaged in clauses (vi) and (vii) of Rule 14 of the Rules of 1958, is wholly misconceived and cannot be accepted. No doubt about it that disciplinary power vests with the Superintendent of Police/Commandant or officer of the equivalent rank and the same has been exercised by him.
The Apex Court in A.Sudhakar V/s Postmaster General Hyderabad and anr. ((2006) 4 SCC 348) has laid down that authority higher than the Appointing Authority may also act as Disciplinary Authority for the purpose of Article 311 of the Constitution provided the delinquent officer is not deprived of his statutory right of appeal. Even the Appellate Authority can impose punishment subject to the said condition. Obligation is on the delinquent officer to show that he had been prejudiced. However, the order of compulsory retirement passed against appellant-A.Sudhakar by the Director of Postal Services (DPS) was held legal as no prejudice has been caused in any manner to the appellant. The Apex Court held thus:-
12. The Tribunal, in arriving at a finding that the Superintendent of Post Offices being the designated authority the order of punishment could not be imposed upon the Appellant by the Director of Postal Services, relied upon a decision of the Central Administrative Tribunal in K.P. Varghese v. Director of Postal Services (1992) 19 ATC 625 (Ernk). However, in that case, by reason of the action on the part of the said higher authority as a disciplinary authority, the delinquent officer was deprived of the forum of appeal. Such is not the position here. Clause (1) of Article 311 of the Constitution of India puts an embargo upon passing of an order of dismissal, removal or reduction of rank in services by an authority below the rank of the appointing authority. There does not appear to be an embargo in terms of the said provision that a higher authority would not act as a disciplinary authority. In the instant case, the appellant has not been deprived of an opportunity of preferring an appeal against the order of the Director of Postal Services. He admittedly preferred an appeal before the Postmaster General which was duly considered. In a matter of this nature, it would be obligatory on the part of the delinquent officer to show prejudice. [See Surjit Ghosh v. Chairman & MD, United Commercial Bank (1995) 2 SCC 474 and Balbir Chand v. Food Corporation of India Ltd. (1997) 3 SCC 371.
14. Before us, the respondents have categorically stated in the counter affidavit that prior to 1989 the Director of Postal Services was the appointing authority. As the appellant was appointed in the year 1983, he was appointed by the Director of Postal Services. It has not been denied or disputed that he was appointed by the Director of Postal Services, but a contention has merely been raised to the effect that as he was promoted when the Lower Selection Cadre was divisionalised, the Superintendent of Post Offices must be held to be the designated authority. The respondents have placed before us a notification dated 7.7.1989 to show that the Director of Postal Services was the appointing/ disciplinary authority in respect of the officials who were promoted to the Lower Selection Grade Cadre prior to divisionalization of Lower Selection Grade Cadre. We, therefore, have no hesitation in holding that the Director of Postal Services was the appointing authority. In any event, as the appellant has in no manner been prejudiced thereby, the impugned judgment cannot be faulted on that count.
18. It is now trite that an authority higher than the appointing authority would also be the designated authority for the purpose of Article 311 of the Constitution. Even the Appellate Authority can impose a punishment subject, of course, to the condition that by reason thereof the delinquent officer should not be deprived of a right of appeal in view of the fact that the right of appeal is a statutory right. However, if such right of appeal is not embellished, an authority higher than the appointing authority may also act as a disciplinary authority.
In the case of A.Sudhakar (supra), the Apex Court has further laid down that if an authority has been designated by a statute enjoining him to perform statutory duties indisputably it is he who has to do the same but in a case of this nature where clause (1) of Article 311 of the Constitution envisages that a major penalty should not be imposed save and except by an order passed by the appointing authority, the latter becomes the designated authority. It is now trite that an authority higher than the appointing authority would also be the designated authority for the purpose of Article 311 of the Constitution. In the instant case, the designated authority is Superintendent of Police/Commandant or officer of the equivalent rank and this power has never been taken away, but rather specifically conferred upon them under the Rules of 1958, Rules of 1966, Rules of 1971, Rules of 1974 and Rules of 1989.
In The State of U.P. And ors. V/s Ram Naresh Lal (AIR 1970 SC 1263), the Apex Court has held that there was nothing in the Constitution which debars Government from conferring powers on officer other than appointing authority to dismiss a Government servant provided he was not subordinate in rank to appointing officer or authority. In the instant case, the Superintendent of Police/Commandant is the Appointing Authority and he has passed the order of dismissal and under the order dated 21/23.12.1985 issued by Head of Department i.e. the Director General-I.G. of Police in exercise of power under Rule 15(1) with prior approval of the State Government, Superintendent of Police/Commandant or officer of equivalent rank has been conferred with the power to impose all penalties specified in clauses (i) to (vii) of Rule 14 of the Rules of 1958 which include the penalties of removal and dismissal from service.
The necessity for making reference arose due to the fact that there were several decisions rendered by the Single Bench as well as Division Bench of this Court holding that Superintendent of Police was not empowered to inflict punishment of removal or dismissal from service as envisaged in clauses (vi) and (vii) of Rule 14 of the Rules of 1958. Now we deal with such decisions.
In Gopikrishna V/s State of Rajasthan (supra), where the DIGP imposed punishment of compulsory retirement on the petitioner (Sub Inspector, Police) and SIGP in appeal substituted the punishment of compulsory retirement by punishment of reversion, the Single Bench of this Court has laid down that Disciplinary Authority envisaged by Rule 15 of the Rules of 1958 with regard to Sub Inspector was IGP and therefore, DIGP had no authority to impose punishment on petitioner and thus, orders of punishment passed by DIGP and SIGP were set aside. It was further observed by the Single Bench that vide order dated 21/23.12.1985, the power was delegated by IGP to DIGP retrospectively and such delegation of power could not have been made retrospectively, however, with respect to prospective delegation, order was not adversely commented upon. The question of retrospectivity is not involved in the instant case, as such, as to the question involved of power of appointing authority to remove/dismiss, the aforesaid decision has no application.
In Harish Chandra V/s State of Rajasthan & ors. (2002(2) WLC (Raj.) 720), where the Superintendent of Police has inflicted the punishment of dismissal from service vide order dated 30.4.1994, relying upon the order dated 17th October, 1986 quoted above, the Single Bench of this Court has held that Superintendent of Police is the head of the office and as per the order dated 17.10.1986 issued in exercise of power under Rule 15(1) of the Rules of 1958, he could have inflicted the penalty upto the stoppage of two grade increments without cumulative effect. We are constrained to hold that the decision of Single Bench in Harish Chandra (supra) cannot be said to have laid down good law. The correct interpretation of the order dated 17.10.1986 has not been made. The order dated 17.10.1986 never intended to take away the power of the Appointing Authority or Disciplinary Authority as provided under the Rules. It deals with the conferment of power on Regional and District Level Officers to impose penalties upto the stoppage of two grade increments without cumulative effect in respect of the members of the subordinate service officers directly under their control and it does not in any manner take away the power of the Disciplinary Authority or Appointing Authority as per Rules. Thus, we have no hesitation to over-rule the decision in the case of Harish Chandra (supra).
Reliance has also been placed on the Single Bench decision of this Court in Rameshwar Lal V/s The State of Rajasthan & Ors. (WLR 1992 (S) Raj. 521). In that case, the Single Bench has relied upon the decision in the case of Gopikrishna (supra). Rameshwar Lal was employed as Constable and punishment of dismissal was imposed upon him by Superintendent of Police; appeal was filed before DIG, which was dismissed and aggrieved thereby, writ application was filed before the Single Bench and it was held that IG of Police was head of Police Department and there was no delegation of powers in favour of SP by the head of department with the approval of the State Government to impose punishment of removal/dismissal and as such, the SP was not competent to take disciplinary action against the petitioner and thus, order of dismissal cannot be sustained and the same was set aside. The definition of Appointing Authority under Rule 2(a) & Rule 12(2) of the Rules of 1958 and Rules of 1989 were not placed before the Single Bench for consideration and at the relevant time when punishment was passed, the order dated 21/23.12.1985 was also not in vogue. Hence, the decision in the case of Rameshwar Lal (supra) is also of no utility.
Reliance has also been placed on the decision of the Single Bench in Smt.Ammini P.K. V/s State of Rajasthan & anr. (WLR 1993 Raj. 302), in which imposition of major penalty on a Health Worker by C.M. & H.O., who is not Head of Department, was held to be without jurisdiction and illegal. The Appointing Authority of petitioner was Director, Medical & Health Services, who is the Head of Department and CM & HO has not been declared as Head of the Department under schedule-A of the Rules of 1958 and thus, penalty imposed by CM & HO is patently illegal and without jurisdiction. In the instant case, the Appointing Authority under Service Rules is Superintendent of Police and there is order also issued under Rule 15(1) of the Rules of 1958 authorizing him to impose penalty of removal or dismissal from service as envisaged under clauses (vi) and (vii) of Rule 14 of the Rules of 1958. The concept of Appointing Authority has to be considered under the context of Rule 2(a), 12(2) and 15(1) note (i) of the Rules of 1958 and Rule 2(a) of the Rules of 1989. Thus, the decision in the case of Smt.Ammini P.K. (supra) is of no avail to espouse the cause of the petitioners.
The decision of Single Bench in Radhey Shyam V/s State of Rajasthan & ors. (S.B.Civil Writ Petition No.1731/1998 decided on 11.8.2006) has also been referred to in which the Single Bench has relied upon the order dated 17.10.1986 issued by the Government of Rajasthan, Department of Personnel and the same has been adopted by the Police Department vide order dated 4.10.1991 and it has been observed without any discussion that it is settled proposition of law that Superintendent of Police could have imposed penalty upto the stoppage of two grade increments without cumulative effect. In our view, the decision is bereft of reasons and does not lay down correct proposition of law and thus, it is hereby over ruled.
No doubt intra-court appeal being D.B.Special Appeal (Writ) No.403/2008 State of Rajasthan & Ors. V/s Radhey Shyam preferred against the order of the Single Bench dated 11.8.2006 in Radhey Shyam's case (supra) was dismissed by the Division Bench of this Court vide judgment dated 5.9.2008 and the Division Bench held that in view of the circular dated 17.10.1986 which has been adopted by the Police Department on 4.10.1991, major penalty could not have been inflicted by SP and the Single Bench was right in modifying the punishment from stoppage of two annual increments with cumulative effect to stoppage of two annual increments without cumulative effect. We have already discussed the purport of the order dated 17th Oct.1986 which has been adopted by the Police Department and it only 'confers' power on the Regional and District Level Officers where it did not exist to impose penalties upto the stoppage of two grade increments without cumulative effect in respect of members of the subordinate service officers directly under their control and it did not in any manner take away the power of the Appointing Authority or Disciplinary Authority. Thus, the Division Bench Judgment dated 5.9.2008 cannot be said to have laid down correct law and is liable to be over ruled. Apart from this, the review application being D.B.Civil Review Petition no.57/09 for reviewing the order dated 5.9.2008 has been filed by the State of Rajasthan and the same is pending.
Reliance has also been placed on the decision of the Single Bench of this Court in Ram Karan V/s The state of Rajasthan & Ors. (S.B.Civil writ Petition No.1474/1998 decided on 4.5.2007) in which order of dismissal was passed on 5.8.1992 by the Superintendent of Police and relying upon para 7 of the judgment in Rameshwar Lal's case (supra), which is quoted below, the Single Bench held that Superintendent of Police was not competent to dismiss the petitioner from the post of Constable:-
A bare reading of this Rule goes to show that a delegation by Head of Department can be made only with the prior approval of the Government. In the present case, there is neither averment nor any material to show that delegation had been made by the I.G. Of Police in favour of the S.P.With the prior approval of the government. When it is so, the S.P. was not competent to inflict the penalty of dismissal upon the petitioner. In Gopi Krishna's case (supra), the petitioner was a Sub Inspector of Police and like the present petitioner, he also joined to Rajasthan Police Subordinate Services. Disciplinary proceedings were taken against Gopi Krishna by D.I.G. Of Police who imposed punishment of compulsory retirement on the petitioner. The Special Inspector General of Police partly allowed the appeal and punishment of compulsory retirement imposed by the D.I.G. was substituted by punishment of reversion to the lower post for a period of 5 years. Aggrieved, Gopi Krishna approached this Court. There also the question arose as to who was the disciplinary authority in respect of an officer belonging to the Rajasthan Police Subordinate Services, 1974. It was held that the D.I.G. Of Police was not competent to take action against a member of the Rajasthan Police Subordinate Service and I.G. Of Police was alone competent to take disciplinary action who is the Head of the Department for such purposes.
We have already over ruled the decisions in the cases of Rameshwar Lal (supra) and Gopikrishna (supra). The order of delegation issued by DG-cum-IG of Police was not placed before the Single Bench for consideration. Rule 2(a) of the Rules of 1958 as well as Rules of 1989 were also not taken into consideration. The decision in the case of Gopikrishna (supra) was with respect to retrospectivity of order delegating power issued by the Head of Department in 1985. Thus, we have no hesitation in holding that the decision in Ram Karan (supra) does not lay down good law and liable to be over-ruled.
No doubt intra-court appeal being D.B.Civil Special Apepal (Writ) No.385/2008 The State of Rajasthan & Ors. V/s Ram Karan preferred against the order passed by the Single Bench in the case of Ram Karan (supra) has been dismissed by the Division Bench of this Court vide judgment dated 11.11.2008 and in that judgment, reference has been made to the decision in the case of Rameshwar Lal (supra) where it was held that Superintendent of Police was not competent to pass an order of dismissal. We are respectfully in disagreement with the decision rendered by the Division Bench and have no hesitation to over rule that decision as various aspects were not taken into consideration and simply reference was made to the judgment in the case of Rameshwar Lal (supra), which we have already discussed and over-ruled.
Reliance was also placed on the decision of the Apex Court in Superintendent of Police Manipur and ors. V/s R.K.Tomalsana Singh (Dead) by Lrs. (AIR 1984 SC 535) wherein order of dismissal from service was passed by the Superintendent of Police and the same was challenged by way of filing writ application, which was allowed by the Judicial Commissioner holding that enquiry ought to have been held in accordance with the Rules of 1958 and that having not been done, the order stood vitiated and the Apex Court observed that this finding is unassailable. The Apex Court further held that Judicial Commissioner was right in holding that the order dated July 27,1951 is inoperative to incorporate and apply provisions contained in Part I-V of Assam Police Manual for Police Force in Manipur, as approval of the State Government, which is necessary, was not obtained and it is futile to contend that as the order issuing authority was simultaneously holding the office of Chief Commissioner of Manipur State, the order would be deemed to have been issued with the approval of the State Government and therefore, the departmental enquiry was not held in accordance with the relevant law and Judicial Commissioner rightly set aside the order of dismissal. In the instant case, the Superintendent of Police is the Appointing Authority and the order passed by the Director General-cum-I.G. Of Police on 21/23rd December, 1985 delegating disciplinary power on the SP to impose penalty of removal or dismissal bears the approval of the State Government. Hence, the above decision is not helpful to the petitioners.
The Division Bench of this Court in Manohar Singh V/s State of Rajasthan & ors. (D.B.Civil Special Appeal (Writ)No.929/2007 decided on 19.5.2009) considering the provisions contained in Rule 12, 14 and 15 of the Rules of 1958, Rule 2(iii) of the Rules of 1989 and Article 311 of the Constitution, held that Superintendent of Police being Appointing Authority for the posts of Assistant Sub Inspectors/Head Constables/Constables, is competent to impose penalty of removal from service in terms of Article 311 of the Constitution.
In Smt.Kanta Devi V/s Union of India (UOI) and Anr. (AIR 2003 SC 3428), where employee was appointed as Naik with prior approval of Inspector General, the appointing authority was Commandant and his dismissal from service as Subedar (Inspector) was passed by the Deputy Inspector General without approval of the Inspector General, it was held by the Apex Court that the Deputy Inspector General was competent to pass order of dismissal. As per Rule 7(b) of the Central Reserve Police Force Rules, 1955, the appointing authority is the Commandant and since the DIG is of higher rank, there is no illegality in the dismissal order passed by him. Just because the IGs approval is required for the purpose of appointment or promotion, the position of the Commandant as the appointing authority is not changed and the IG does not become the appointing authority. Subedar (Inspector) can be dismissed or removed from the force by the Deputy Inspector General of Police, who is higher in rank than the Commandant. Therefore, the order of the Division Bench of High Court holding that the dismissal order passed by the DIG was legal and does not suffer from any infirmity so as to warrant interference. In the instant case, the Appointing Authority is Superintendent of Police and he was empowered to impose penalty of dismissal or removal by the Head of Department i.e. DG-cum-I.G.of Police vide order dated 21/23.12.1985 issued with prior approval of the State Government. Hence, order of dismissal passed by the Superintendent of Police is valid and legal.
It was submitted by the learned counsel appearing on behalf of the petitioners that since in the Selection Board for recruitment to the post of Constable, Inspector General of Police is one of the Members, as such, it was not appropriate for the Superintendent of Police to exercise the power of ordering dismissal, though appointment order might have been issued by him; Head of Department could have passed the order of dismissal or removal from service. A similar question came up for consideration in State of Assam etc. V/s Kripanath Sarma and Ors. etc. (AIR 1967 SC 459), where the Apex Court laid down that though the power of appointment has to be exercised on the advice of the Committee constituted under section 16 of the Act, the power of appointment is only in the Assistant Secretary. Even assuming that the recommendation 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, and the appointment is made only by the Assistant Secretary. The Apex Court has laid down thus:-
20. Now as we read s.14(3)(iii) of the Act, it is obvious that the power of appointment is only in the Assistant Secretary, though that power has to be exercised on the advice of the committee constituted under s.16 of the Act. Even assuming that the recommendation 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, and the appointment is made only by the Assistant Secretary. Even if the word 'advice' in this provision is equated to the word 'recommendation', it is still clear that the Committee only recommends and it is the Assistant Secretary who is the appointing authority on the recommendation of the Committee. It may be that the Assistant Secretary cannot make the appointment without the advice or recommendation of the Committee. Even so, in law, the appointing authority is only the Assistant Secretary, though this power is to be exercised on the advice or recommendation of the Committee. In these circumstances, it cannot be said that there is any different intention appearing from the fact that the appointment has to be made on the recommendation or advice of the Committee. The appointing authority would still be the Assistant Secretary and no one else, and there is no reason why, if he is the appointing authority, he cannot dismiss those appointed by him with the aid of section 18 of the 1915-Act. We cannot therefore agree with this view of the High Court.
However, the Apex Court further observed that a person appointed before the Act came into force by the School Board cannot be said to have been appointed by the Assistant Secretary of the State Board or its predecessor the State Advisory Board, for there was no such authority in the earlier enactment. In these circumstances, the Apex Court held that Assistant Secretary could not dismiss teachers appointed before the Act came into force, for there was no such authority existing before that. That fact situation is not obtainable in the instant case. However, the submission raised that Superintendent of Police cannot be treated as appointing authority, Inspector General of Police being one of the members of Selection Board constituted under the Rules of 1989 stands answered against petitioners on strength of this decision. Even though Selection Board may have been consisted of officer higher than SP/Commandant, in our opinion, Superintendent of Police/ Commandant is still the appointing authority under the Rules of 1989 and he is not divested of power to act as Disciplinary Authority also, which has been conferred upon him under Rule 15(1) note (i) by virtue of being appointing authority under the Rules of 1958.
In Ikramuddin Ahmed Borah V/s Superintendent of Police, Darrang and ors. (AIR 1988 SC 2245) where the order of dismissal was passed by the Superintendent of Police, the Apex Court has observed that selection of appellant-Ikramuddin Ahmed was made by Memo and appointment order was issued by the Principal Training College by subsequent Memo, however, Superintendent of Police and Principal Training College had coordinate jurisdiction according to column II of schedule and thus, appellant having been appointed by the Principal Police Training College and having been dismissed by Superintendent of Police, who was coordinate authority. Hence, it was not proved that order of dismissal was passed by the authority subordinate to the appointing authority. There was no good ground to interfere with the view taken by Superintendent of Police.
In the instant case, the order of dismissal was passed by the Superintendent of Police. Under the Rules of 1989, Superintendent of Police/Commandant or any officer of equivalent rank are coordinate authorities and they being appointing authority can always order dismissal or removal. In the order dated 21/23.12.1985 also issued by Director General-cum-I.G. Of Police, the Superintendent of Police or officers of equivalent rank have been given disciplinary power to impose penalty of removal and dismissal as specified in clauses (vi) and (vii) of Rule 14 of the Rules of 1958 and that order still holds the field and is in accordance with law having been issued by the Head of the Department in exercise of power conferred under Rule 15(1) of the Rules of 1958 with the prior approval of the State Government. Hence, the Superintendent of Police being Appointing Authority was competent to pass order of dismissal. The order was not superseded by order dated 17.10.1986.
The learned Advocate General has relied on Section 16 of the General Clauses Act, 1958 and the decision of the Allahabad High Court in Sita Ram V/s State (AIR 1968 All. 207), where it has been observed that authority competent to appoint had also by implication been authorized to dismiss or remove the Lekhpal. Reliance was placed on the decision of Full Bench in Emperor V/s Maung Bo Maung (AIR 1935 Rang 263 (FB)) where the power to appoint assistant accountants in treasury had been transferred by the State Government to Deputy Commissioners by means of a circular letter containing rules, it was held that the Deputy Commissioner was not acting on behalf of the State Government while making the appointment and he himself was the authority constituted to do so and although the rules did not confer on the Deputy Commissioner the power to dismiss treasury assistant accountants also, that power also stood transferred to him by implication.
In the instant case, there are specific provisions contained in note (i) of Rule 15(1) of the Rules of 1958 and the Rules of 1989 and specific order issued by the Head of the Department with the prior approval of the State Government conferring power upon the Superintendent of Police/Commandant or officer of equivalent rank, who is Appointing Authority, to impose penalty of removal and dismissal as specified in clauses (vi) and (vii) of Rule 14 of the Rules of 1958. Thus, Superintendent of Police/Commandant is fully competent to pass order of dismissal or removal from service. The order dated 17th October, 1986 was issued because services in the State consist of various branches of various departments in which power might have not been existing with the Regional/District Level Officers to inflict such punishment upto withholding of two increments without cumulative effect under various service rules/instructions.
Reliance was also placed on the decision in State of M.P. V/s Arjun Lal (2006(2) SCC 711), where the Apex Court has laid down that all appointments should be made in conformity with the constitutional scheme as laid down under Articles 14 and 16 of the Constitution as well as the Rules promulgated in terms of the provisions of Article 309 of the Constitution of India. In the instant case, considering the Rules of 1958 and Rules of 1989 and the order dated 21/23.12.1985, in our opinion, the power of Appointing Authority to act as Disciplinary Authority is intact.
Reference was also made to the decision of Apex Court in Moti Ram Dekha V/s General Manager North East Frontier Railway (AIR 1964 SC 600) where it was held that no rule framed under Article 309 can trespass on the right guaranteed by Article 311 of the Constitution of India. Article 311 of the Constitution is paramount and all rules have to be in consonance with the said provisions of the Constitution. We do not find that ratio of the aforesaid decision is attracted as rules in question cannot be said to be violative of Article 311 of the Constitution of India.
Reliance has also been placed on the decision of the Apex Court in Union of India V/s Tulsi Ram Patel (AIR 1985 SC 1416) in which it has been held that source of authority/power by appointing authority is derived not from any rules but also from Article 311 of the Constitution of India. In the Instant case, the Appointing Authority is Superintendent of Police and he has been conferred with the power of Disciplinary Authority also. No doubt about it that Rules promulgated under Article 309 are subject to Articles 310 and 311 of the Constitution as laid down by the Apex Court, but we do not find that rights guaranteed under Article 311 of the Constitution have been taken away in any manner by the Rules in question framed under Article 309 of the Constitution of India and the Rules in question are in consonance with the provisions contained in Articles 310 and 311 of the Constitution.
In view of the discussion made above, considering the provisions contained in Rules of 1958, Rules of 1966, Rules of 1971, Rules of 1974 and Rules of 1989 and the order dated 21/23.12.1985 issued by the Director General-cum-I.G. Of Police with prior approval of the State Government, we are of the considered opinion that the Superintendent of Police/Commandant or officer of equivalent rank is fully empowered and competent to impose the penalties of removal and dismissal from service on Head Constables/Constables as envisaged under clauses (vi) and (vii) of Rule 14 of the Rules of 1958. The decisions to the contrary do not lay down correct law and they are hereby over-ruled.
Resultantly, the question referred by the Single Bench is answered in the following manner:-
Question:-
Whether in view of the note (ii) below Rule 15 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958, Superintendent of Police is competent to impose the penalty of removal or dismissal specified respectively in clauses (vi) and (vii) of Rule 14 thereof?
Answer:-
The question is answered in affirmative and it is held that in view of the Note (i) below Rule 15 (1) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, authority who is empowered to make appointment to a Service is competent to inflict any of the penalties specified in Rule 14 and as per Note (ii) to Rule 15 (1) of Rules of 1958 power could be delegated by the State Government or Head of the Department to any authority subordinate thereto, but the State Government or Head of Department, as the case may be, shall not empower under Note (ii) of Rule 15 (1) of the Rules of 1958 any authority meaning thereby other authority than appointing authority as mentioned in Note (i) of Rule 15(1) of the Rules of 1958 to impose penalties specified in clauses (vi) and (vii) of Rule 14 of the Rules of 1958. The Superintendent of Police/Commandant or officer of equivalent rank being authority empowered to make appointment to a Service is competent to impose penalties specified in clauses (vi) and (vii) of Rule 14 of the Rules of 1958.
Let the matters be placed before the appropriate bench for deciding the same on merits.
(MOHAMMAD RAFIQ),J. (AJAY RASTOGI),J. (ARUN MISHRA),C.J. Parmar
All the corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
N.K.Parmar, PS.