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AFR

RESERVED

Case:- SPECIAL APPEAL DEFECTIVE No.- 473 of 2016

Appellants:- State of U.P. & 4 others

Respondent:- Washer Man 0818600092, Ashok Kumar Chaudhary

Counsel for Appellants:- Piyush Shukla, C.B. Yadav, Addl. Advocate

General, Shashank Shekhar Singh, Addl. CSC

Counsel for Respondent:- Udai Chandani

Hon'ble Dilip B Bhosale, Chief Justice

Hon'ble Yashwant Varma, J

Hon'ble Pratyush Kumar, J

(Per Dilip B Bhosale, CJ)

The order of reference dated 28 July 2016, which has occasioned the

constitution of this Full Bench, has been passed by a Division Bench in the

instant special appeal having found itself unable to accept the correctness

of the view taken by another Division Bench of this Court in State of U.P.

& Anr. Vs. Anil Kumar Bharti, Special Appeal Defective No. 302 of

2015 (decided on 28 May 2015). The questions as formulated by the

Division Bench for our consideration, read thus:

“(a) Which of the law laid down in the case of Krishna

Murari (supra) or law laid down in the case of State of

U.P. and others Vs. Anil Kumar Bharti is the correct

law.

(b) Whether in respect of departmental proceeding to be

initiated against the inferior staff (Group-D staff)

working in U.P. Police, the procedure as laid down

under the Rules 1999 will apply or the provisions of the

Rule, 1991 would be applicable.”

2.The Division Bench which decided Anil Kumar Bharti rested its

judgment on the dictum laid down by a Full Bench of this Court in State

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of U.P. through Principal Secretary, Home & Ors. Vs. Rajendra Singh

Anr., AIR 2016 Alld 100. While formulating the questions for our

consideration, the Division Bench made the following observations:

“We find that the subsequent division Bench has drawn

analogy from the law as declared by the Full Bench in

the case of Rajendra Singh (supra) which was not

directly on the issue regarding applicability of the

statutory provisions in the matter of holding of

departmental inquiry against the inferior police officers

namely (Group-D) employees of the police force. The

division bench in the case of Krishna Murari (supra)

after referring to the provisions of Rules, 1991 has

specifically held that the inferior Police Officer had not

been included within the framework of the said Rules,

1991 and, therefore, the Rules, 1999 would apply to

them. This aspect of the matter was not under

consideration before the Full bench in the case of

Rajendra Singh (Supra).”

3.Before proceeding to the merits of the reference made, it would be

relevant to note the background facts in which the special appeal travelled

to the Division Bench. The respondent sought quashing of an order dated

18 April 2013 in terms of which a penalty of non-payment of salary for

twelve days and a fine equivalent to five days of salary came to be imposed

upon him. The main submission which appears to have been advanced

before the learned Single Judge was that although the departmental

proceedings were initiated under the provisions of the Uttar Pradesh

Police Officers of the Subordinate Ranks (Punishment and Appeal)

Rules, 1991 (for short, 'Rules, 1991'), the petitioner-respondent could have

been proceeded against only in accordance with the provisions of the Uttar

Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (for

short, 'Rules, 1999'). The learned Single Judge, relying upon the judgment

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rendered by a Division Bench of this Court in Krishna Murari Vs. State

of U.P. & Ors., (2012) 93 ALR 647, accepted the above submission and

consequently quashed the orders impugned in the writ petition. The learned

Single Judge, however, granted liberty to the appellants to proceed against

the petitioner-respondent in terms of the Rules, 1999.

3.1Before the Division Bench which has made the present reference, it

was pointed out that the judgment in Krishna Murari had been duly

noticed in Anil Kumar Bharti, wherein the Division Bench clearly held

that the said judgment would fall foul of the position of law as enunciated

by the Full Bench of the Court in Rajendra Singh. The State sought to

draw sustenance from the fact that since Krishna Murari had been duly

taken note of and had been held as no longer good law, the learned Single

Judge had clearly erred in allowing the writ petition of the petitioner-

respondent. In appeal, the Division Bench has doubted the correctness of

Anil Kumar Bharti and the two learned Judges were of the view that the

judgment of the Full Bench in Rajendra Singh had no application. It is in

the aforesaid backdrop that the instant reference came to be made to the

present Full Bench.

4.The police force in the State of Uttar Pradesh is organised and

governed by the provision of the Police Act, 1861 (for short, 'Police Act').

In terms of Section 7, disciplinary jurisdiction, subject to the provisions of

Article 311 and to such rules as the State Government may make, to

dismiss, suspend or reduce any officer of the subordinate ranks, is vested in

the Director General-cum-Inspector General, the Deputy Inspector General,

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Assistant Inspector General and District Superintendent of Police. The

State Government, by virtue of the provisions of Section 46(2)(c) is

empowered to frame rules generally for giving effect to the provisions of

the Act. It may be noted at this stage itself that while the Rules, 1991 have

been framed by the State Government in purported exercise of powers

conferred by Section 46 of the Police Act, the Rules, 1999 are of general

application having been framed with reference to the proviso to Article 309

of the Constitution. Proceeding further, we note that the State in appeal

primarily raised two contentions. Firstly, it was contended that Krishna

Murari was no longer good law. Secondly, they referred to the fact (and

which is not disputed before us) that the Rules, 1991 had been adopted by

and in terms of the Government Order dated 13 March 2010 and

consequently applied to all Class IV employees of the police force.

5.In this backdrop, it would be advantageous to have a close look at

the Full Bench judgment in Rajendra Singh. The question that fell for

consideration of the Full Bench was, whether a temporary police constable

appointed under Section 2 of the Police Act, who has not been placed on

probation, can be terminated from service in accordance with the Uttar

Pradesh Temporary Government Servants (Termination of Service) Rules,

1975 or whether the procedure provided under Para 541 of the Uttar

Pradesh Police Regulations (for short, 'Regulations') dealing with

constables on probation shall be applicable. The Full Bench, after making

detailed reference to the relevant provisions of the Police Act and to the

Regulations and so also to Article 309 of the Constitution and various

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judgments of the Supreme Court, considered the issue as to whether the

Police Act, read with the Regulations alone would be applicable to the

members of the police force or whether the rules framed under Article 309

of the Constitution would apply. The submission advanced for

consideration of the Full Bench was that the Police Act and the Regulations

as well as the rules framed thereunder embodied a complete code which

alone would govern members of the police force, and that the general rules

framed under Article 309 of the Constitution would not apply. While

answering the said issue, the Full Bench referred to two decisions rendered

by earlier Full Benches of this Court in Nanak Chand Vs. State of U.P. &

Ors., 1971 ALJ 724 and Vijay Singh & Ors. Vs. State of U.P. & Ors.,

2005 (23) LCD 1696. In addition thereto, the Full Bench also drew

sustenance from the decision of the Supreme Court in Chandra Prakash

Shahi Vs. State of U.P. & Ors., [2000 (3) AWC 1848 (SC)]. The Full

Bench, then, ultimately enumerated the basic principles which, according

to it, emerged from the decisions referred to above. These basic principles

as formulated by it read as under:

(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;

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(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

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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;

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(x) In Chandra Prakash Tiwari

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, 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'. 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

arise. 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.”

5.1The Full Bench ultimately recorded its conclusions in the following

terms:

“Hence, the issue which has been framed for decision of

the Full Bench would have to be answered by holding

that a person who is appointed as a temporary police

constable and who has not been placed on probation, can

be terminated from service. Such a person is not

governed by the provisions of Regulation 541 which

applies to probationers. The rules which have been

framed under the proviso to Article 309 of the

Constitution, to wit, the Rules of 1975 would not be

1 AIR 2002 SC 2322

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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. The mere mention of the Rules of

1975 will not invalidate an order of termination.”

6.As noted in Anil Kumar Bharti, the Rules, 1991 have been

specifically applied to all Group D employees by a Circular dated 13 march

2010. With effect from 28 August 2009, the date of coming into force of

the Uttar Pradesh Police Group D Employees Service Rules, 2009 (for

short, 'Rules, 2009'), Group D employees in the police force were formally

enrolled as members of the police force. The Circular dated 13 march 2010

has been issued with reference to the provisions of Rule 29 of the Rules,

2009. It is in this manner that the Rules, 1991 have been made applicable to

Group D employees of the police force. Now, it is not in dispute that the

Rules, 1991 have been framed by the State Government in purported

exercise of powers conferred by Section 46 of the Police Act whereas the

Rules, 1999 are of general application having been framed with reference

to the proviso to Article 309 of the Constitution. As observed by the Full

Bench in Rajendra Singh, the rules referable to a specific source of power

under the Police Act 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. The Supreme

Court in Chandra Prakash Tiwari observed that by reasons of the provisions

of a special statute, namely, the Police Act read with the authorisation

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,

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unless the general rules which are framed under Article 309 of the

Constitution specifically repeal the special rules or unless there is a specific

repeal of the existing law. The rules framed under a legislative enactment

constitute delegated or subordinate legislation. The rules made under

Article 309 are not of that nature. Thus, the rules which have been framed

under Article 309 of the Constitution 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 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. In other words, once a law has been enacted by a

competent legislature and particularly in a situation where legislation, such

as the Police Act, is construed as a complete code, it constitutes a special

statute governing the police force incorporating within its field, matters

relating to appointment, dismissal, placement etc.

7.In Anil Kumar Bharti, the issue which arose for consideration again

turned upon the question as to whether the Rules, 1991 would apply or the

Rules 1999. After noticing the principles which had been enunciated by the

Full Bench in Rajendra Singh, the Division Bench observed as under:

“In taking this view, it must be noted that the Full

Bench has adverted at length to the decisions of the

Supreme Court particularly those in (i) State of U.P. vs.

Babu Ram Upadhya (supra); (ii) A.B. Krishna vs.

State of Karnataka; and (iii) Chandra Prakash

Tiwari (supra). The basic principle of law which has

been formulated in the judgments of the Supreme Court

and in the two decisions of the Full Benches of this

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Court is that the Police Act, 1861 and the rules framed

under it constitute a self-contained code. Consequently,

where rules have been framed or government orders

have been issued in relation to the members of the

police force specifically under the enabling provisions

of Sections 2, 7 and 46 (2) (c), members of the police

force would be governed by the specific rules or, as the

case may be, government orders which would not be

abrogated by the general rule making power which is

conferred by Article 309 of the Constitution. Rules

framed under the proviso to Article 309 apply generally

speaking to government servants appointed in

connection with the affairs of the Union or, as the case

may be, of the States. However, members of the police

force are governed by the specific provisions contained

in the Police Act, 1861 and by the rules framed in

pursuance of the power of subordinate legislation and

by an administrative determination made under Section

2. Under Section 2, the State Government has the

power to determine all the conditions of service of the

members of the subordinate ranks of the police force.”

7.1The Division Bench, then, with reference to the judgment in

Krishna Murari, noted as follows:

“For these reasons, we hold that the learned Single

Judge was in error in allowing the writ petition and

setting aside the disciplinary action which was adopted

against the respondent on the basis that the respondent

would be governed not by the Rules of 1991 but by the

general rules framed under the proviso to Article 309 of

the Constitution, namely the Rules of 1999. The learned

Single Judge sought to draw support from the judgment

of a Division Bench in Krishna Murari (supra). The

judgment in Krishna Murari's case has with respect

not noticed the position in law which was governed by

several judgments of the Supreme Court as well as the

judgment of a Full Bench of this Court in Vijay

Singh's case (supra) which had been delivered prior to

the decision of the Division Bench. Moreover, after the

decision of the Division Bench in Krishna Murari's

case (supra), the position of law has been now set at

rest in the judgment recently delivered by the Full

Bench in Rajendra Singh's case on 11 May 2015.

Since the issue is squarely covered by two decisions of

the Full Benches of this Court which have followed the

law laid down by the Hon'ble Supreme Court, we are of

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the view that it would not be necessary to refer the

correctness of the view of the Division Bench in

Krishna Murari (supra) to a larger Bench for

consideration. The learned Single Judge has not

considered the challenge to the disciplinary proceedings

on merits. Since we set aside the judgment of the

learned Single Judge which had allowed the writ

petition only on the basis that the Rules of 1991 had no

application, we deem it appropriate to remit the

proceedings back to the learned Single Judge for

considering the challenge to the disciplinary action on

merits.”

8.It is not in dispute that the Rules, 1999 have been framed in terms of

the provisions of Article 309 of the Constitution. As would be evident from

a reading of the aforesaid Article, its substantive part empowers the

appropriate legislature to regulate the recruitment, constitution and

conditions of service of persons appointed to public services and posts in

connection with the affairs of the Union or of any State. The proviso to

Article 309 enables the President in respect of services under or in

connection with the affairs of the Union and the Governor in the case of

services and posts in connection with the affairs of the State, to make rules

regulating the recruitment and conditions of service of persons appointed to

such services and posts. The rules framed by the President or the Governor,

as the case may be, under Article 309 and in terms of its proviso, however,

continue to operate until provision is made in that behalf by or under an

Act of the appropriate legislature under the said Article. The impact and

consequences of the proviso to Article 309 has fallen for consideration on

more than one occasion. One may, however, only refer to Chandra

Prakash Tiwari since the said decision emanates from the Police Act

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itself. In the said decision the Supreme Court observed as follows:

“On a conspectus of the whole issue, it is thus difficult

to comprehend that the General Rule framed under

Article 309 should or would also govern the existing

special rules concerning the police rules. Admittedly, the

guidelines as contained in the Government Order dated

5.11.1965 have been under and in terms of the

provisions of the Police Act. There is special conferment

of power for framing of Rules dealt with more fully

herein before, which would prevail over any other Rule.

Since no other rule stands formulated and the

Government Order of 1965 being taken as the existing

rule pertaining to the subject matter presently under

consideration with recent guidelines as noted above, its

applicability cannot be doubted. Unless the General

Rule specifically repeal the effectiveness of the special

rules, question of the latter rule becoming ineffective or

inoperative would not arise. In order to be effective, an

express mention is required rather an imaginary repeal.

It is now a well settled principle of law for which no

relation is further required that law Courts rather loath

repeal by implication. The General Rule framed under

Article 309 has been for all State Government officials

on and since 1994. List II (State List) of the 7

th

Schedule

specially refers to the powers of the State Legislature to

frame Rules specially for the Police. In this context Item

2 thereof would be significant which reads as follows:

"List II-State List"

"2 Police (including railway and village

police) subject to the provisions of entry 2A

of List I."

Police force admittedly has a special significance in the

administration of the State and the intent of the framers

of our Constitution to empower the State Government to

make rules there-for has its due significance rather than

being governed under a general omnibus rule framed

under the provisions under Article 309. When there is a

specific provision unless there is a specific repeal of the

existing law, question of an implied repeal would not

arise...”

9.It was in the aforesaid backdrop and after consideration of numerous

other precedents on the subject that the Full Bench in Rajendra Singh

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ultimately formulated the basic principles which must govern the

controversy in issue. For our purposes, it would be pertinent to note the

principles as formulated in clauses (i), (ii), (v), (vi) and (x). The Full Bench

has in unequivocal terms held that the Police Act and the rules framed

thereunder constitute a self-contained code. It further held that the Rules

and Government Orders referable to the Police Act would continue to hold

the field and would not stand repealed by the exercise of the general rule

making power conferred by the proviso to Article 309. It further

categorically held that the Rules framed under the proviso to Article 309,

would be of general application to government servants appointed whether

in connection with the affairs of the Union or of the States but insofar as

the police force is concerned, it would stand governed by the provisions of

the Police Act and by Rules and administrative instructions referable to a

specific source of power under the said Act. The Full Bench is, therefore, a

complete and authoritative precedent and pronouncement on the

applicability of the provisions of the Police Act and the Rules and

instructions framed thereunder being applicable exclusively to members of

the police force. The Full Bench is also an authority for the proposition that

once Rules have come to be framed by the State in exercise of its powers

conferred by the Police Act or where instructions have come to be issued

with reference to a specific source of power under the said Act, they would

prevail over all other general rules that may be framed by the Governor by

virtue of the proviso to Article 309 insofar as members of the police force

are concerned.

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10.It was on the bedrock of these fundamental and basic principles

enunciated by the Full Bench in Rajendra Singh that Anil Kumar Bharti

rested. The Division Bench which rendered judgment in Anil Kumar

Bharti, therefore, correctly came to conclude that the Rules, 1991 would

prevail over and above the Rules, 1999 insofar as the members of the

police force were concerned. The judgment in Anil Kumar Bharti itself

being based upon the legal principles elucidated by the Full Bench could

not, therefore, be said to have been incorrectly decided. The judgment in

Krishna Murari was rightly noticed to be in conflict with the principles

enunciated by the Full Bench in Rajendra Singh. It was in that backdrop

that the two learned Judges who decided Anil Kumar Bharti, decided not

to refer it to a larger Bench for consideration. There was, therefore, in our

opinion, no justification for the Division Bench to hold that the judgment in

Anil Kumar Bharti was erroneous or based upon an incorrect application

of the principles laid down in Rajendra Singh. The view expressed in

Krishna Murari had been duly noticed in Anil Kumar Bharti. The

Division Bench therein had clearly found the decision in Krishna Murari

to be at variance with the law as declared by the Full Bench in Rajendra

Singh.

11.Thus, we answer both the questions referred to, for our consideration

as follows: the law laid down in Anil Kumar Bharti is the correct position

of law. Insofar as departmental proceedings to be initiated against the

inferior staff (Group-D staff) working in Uttar Pradesh police are

concerned, the procedure as laid down under the Rules, 1991 will apply.

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12.The Registry is directed to place the Special Appeal before the

appropriate Bench for its consideration on merits in light of the position of

law as has been stated in this judgment in answer to the questions referred

to this Full Bench.

December 02, 2016

AHA

(Dilip B Bhosale, CJ)

(Yashwant Varma, J)

(Pratyush Kumar, J)