The Police Act was enacted in the aftermath of the Mutiny of 1857. The Act received the assent of the Governor-General on 22 March 1861. The long title describes it as “an ...
No Acts & Articles mentioned in this case
1
Reserved
AFR
Service Bench No 726 of 1997
State of U P through Principal Secretary, Home & Ors
Vs
Rajendra Singh & Anr
With
Service Bench No 505 of 1997
Ambika Prasad
Vs
Superintendent of Police
With
Service Bench No 2916 of 1994
State of U P & Ors
Vs
Chhotey Lal & Ors
With
Service Bench No 927 of 1999
Raja Ram Shukla
Vs
State Public Service Tribunal
With
Service Bench No 1547 of 1999
Munesh Babu
Vs
State of U P through the Secretary Home
Appearance:
Smt Sangeeta Chandra, Addl CSC, for the State
Sri Sudeep Seth for the other side
2
Hon'ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice
Hon'ble Shri Narayan Shukla, J
Hon'ble Rajan Roy, J
(Per Dr D Y Chandrachud, CJ)
The issue
On 7 November 2012, a Division Bench referred the following
question of law for resolution by the Full Bench:
"Whether a temporary police constable appointed
under Section 2 of the Police Act 1861
1
, 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
2
or whether the procedure provided under Para 541
of the Police Regulations dealing with the constables on
probation shall be applicable"
The issue before the Full Bench, turns upon the interpretation of the
provisions of the Police Act and of the Police Regulations. The issue is
whether a person, who has been appointed as a police constable on a
temporary basis, is entitled to the benefit of Regulation 541 of the Police
Regulations. The constables who are before this Court, contend that the
services of a person who is appointed on a temporary basis, can be
dispensed with only in accordance with the procedure prescribed by
Regulation 541. Contrary to this, is the position which has been adopted
by the State, which is that the services of a person who has been
1Police Act
2Police Regulations
3
appointed on a temporary basis are not governed by Regulation 541
which applies only to probationers, and that the Rules framed by the State
under Article 309 of the Constitution, called the Uttar Pradesh Temporary
Government Servants (Termination of Service) Rules, 1975
3
would apply.
The Police Act 1861
The Police Act was enacted in the aftermath of the Mutiny of 1857.
The Act received the assent of the Governor-General on 22 March 1861.
The long title describes it as “an Act for the regulation of police”. The
Preamble states that 'it was expedient to re-organise the police and to
make it a more efficient instrument for the prevention and detection of
crime.' The Act and the Regulations were preserved under Section 243 of
the Government of India Act, 1935 and by Articles 313 and 372 of the
Constitution.
After the enactment of the Constitution, the police is a state subject
under Entry 2 of the State List to the Seventh Schedule. Entry 2, which
deals with the police, including railway and village police, is subject to
the provisions of Entry 2A of the Union List providing for the deployment
of any armed force of the Union or any other force subject to the control
of the Union.
Section 2 of the Police Act provides for the constitution of the
force, in the following terms:
"2. Constitution of force.- The entire police
establishment under a State Government shall for the purposes
3Rules of 1975
4
of this Act, be deemed to be one police force, and shall be
formally enrolled and shall consist of such number of officers
and men, and shall be constituted in such manner, as shall from
time to time be ordered by the State Government.
Subject to the provisions of this Act the pay and all other
conditions of service of members of the subordinate ranks of
police force shall be such as may be determined by the State
Government."
Section 7 provides that subject to the provisions of Article 311 of
the Constitution and to such rules as the State Government may, from
time to time, make under the Act, the Director cum Inspector General
may, at any time, dismiss, suspend or reduce any police officer of
subordinate ranks who is thought to be remiss or negligent in the
discharge of his duties or unfit 'for the same' or may award one of the
punishments mentioned in the provision. Section 8 provides that every
police officer appointed to the police force shall receive on appointment, a
certificate in the form annexed to the Act by virtue of which such a person
is vested with the powers, functions and privileges of a police officer.
When the person named in the certificate ceases to be a police officer, the
certificate shall cease to have effect and it would have to be surrendered
forthwith.
Section 12 confers upon the Director General-cum-Inspector
General the power to make rules and is in the following terms:
"12. Power to Inspector-General to make rules.-
The Director-General-cum-Inspector-General may, from
5
time to time, subject to the approval of the State
Government, frame such orders and rules as he shall
deem expedient relating to the organization, classification
and distribution of the police force, the places at which
the members of the force shall reside, and the particular
services to be performed by them; their inspection, the
description of arms, accoutrements and other necessaries
to be furnished to them; the collecting and
communicating by them of intelligence and information;
and all such other orders and rules relating to the police
force, as the Inspector-General shall, from time to time,
deem expedient for preventing abuse or neglect of duty,
and for rendering such force efficient in the discharge of
its duties."
Section 23 provides for the duties of police officers.
A rule making power is conferred upon the State Government under
Section 46(2). Under clause (c) of sub-section (2) of Section 46, the
following provision has been made:
"46. Scope of Act.- (1) ... ......
(2) When the whole or any part of this Act shall
have been so extended, the State Government may,
from time to time, by notification in the official
Gazette, make rules consistent with this Act-
(a) ... ......
(c) generally, for giving effect to the
provisions of this Act."
A self-contained Code
In State of U P Vs Babu Ram Upadhya
4
, a Constitution Bench of
4AIR 1961 SC 751
6
the Supreme Court held that:
"...the Police Act and the rules made thereunder
constitute a self-contained code providing for the
appointment of police officers and prescribing the
procedure for their removal."
This position has been reiterated in subsequent decisions of the
Supreme Court, specifically in the context of the Police Act. In Chandra
Prakash Tiwari Vs Shakuntala Shukla
5
, the Supreme Court laid down
the same principle in the following observations:
"The aforesaid provision of Section 12 thus
authorises the Inspector General of Police to make rules
obviously under the Act and in the nature of
administrative instructions. As a matter of fact, a perusal
of the provisions of the Act, in particular that of Section
46, makes it abundantly clear that the statute (the Police
Act) ought to be treated as a complete code by itself-
there is thus a special statute concerning the police
force and within its fold are included the
appointment, dismissal, placement and all other steps
required to re-organise the police and make it more
efficient instrument for the prevention and detection
of crime." (emphasis supplied)
The Police Act, 1861 is a special statute and a complete code.
Police Regulations
The Police Regulations deal with matters including (i) powers and
duties of officers in Part I; (ii) particular duties including lodging of
5(2002) 6 SCC 127
7
reports, investigations, inquests, arrest, bail and custody, custody and
disposal of property, special crimes, patrols and pickets, execution of
processes and other miscellaneous provisions in Part II; (iii) internal
administration in Part III; and (iv) training in Part IV.
Regulations 61 to 64 of the Police Regulations provide for the
organisation and duties of constables. Regulations 65 to 72 provide for the
organisation and duty of the Armed Police.
Chapter XXIX comprises of Regulations 396 to 427 and deals with
appointment. Regulation 396 provides that the police force consists of (1)
Provincial Police, Civil, Armed and Mounted; (2) Government Railway
Police; and (iii) Village Chaukidars. Regulation 397 provides for gazetted
officers of the force. Under Regulation 398, non-gazetted officers of the
force are Inspectors, Sub Inspectors, Head Constables and Constables.
Regulation 409 speaks of the enlistment of constables for the Armed and
Civil Police, the minimum and upper age limit being 18 and 23, subject to
a relaxation of five years for candidates belonging to Scheduled Castes.
Regulation 413 requires that a register of candidates for recruitment shall
be kept in every district. Under Regulation 418, as soon as a person's
name is entered in the register of candidates and he is passed by the Civil
Surgeon or immediately after enlistment in the case of a man recruited
without being first registered as a candidate, a verification of his character
and antecedents has to be carried out. Regulation 423 requires that a
certificate of appointment, showing the date of enrolment, is to be
8
furnished mounted on cloth to every person enrolled in the police force
under the Police Act. The certificate is liable to be surrendered on quitting
the service.
Temporary appointments
Regulation 423 provides that these orders also apply to men
temporarily appointed. Regulation 427 provides as follows:
"The men whose names are on the register of
candidates for recruitment (see Paragraph 413) and who
have not yet been enlisted, have a prior claim to
appointment in temporary vacancies. If none of these men
are available, others may be appointed. The
Superintendent should insist, as far as possible, on men
temporarily appointed as constables possessing the
qualifications required for recruits. No man may be
appointed to act temporarily as a constable in a
permanent vacancy."
Both Regulations 423 and 427 are an indicator of the position that
temporary appointments are contemplated in the rules.
Chapter XXXII of the Police Regulations containing Regulations
477 to 507-A have been made (as provided in Regulation 477) under
Section 7 of the Police Act and apply only to officers appointed under
Section 2. Chapter XXXII deals with departmental punishment and
criminal prosecution of police officers.
Probation : Regulation 541
Chapter XXXVII containing Regulations 539 to 554 deals with the
9
training of Head Constables and Constables. Regulation 541 provides as
follows:
"541. (1) A recruit will be on probation from the
date he begins to officiate in a clear vacancy. The period
of probation will be two years except in the following
cases :
(a) those recruited directly in the Criminal
Investigation Department or District Intelligence
Staff will be on probation for three years, and
(b) those transferred to the Mounted Police will
be governed by the directions in paragraph 84 of
the Police Regulations.
If at the end of the period of probation, conduct
and work have been satisfactory and the recruit has been
approved by the Deputy Inspector General of Police for
service in the force, the Superintendent of Police will
confirm him in his appointment.
(2) In any case in which either during or at the end
of the period of probation, the Superintendent of Police
is of opinion that a recruit is unlikely to make a good
police officer he may dispense with his service. Before,
however this is done the recruit must be supplied with
specific complaints and grounds on which it is proposed
to discharge him and then he should be called upon to
show cause as to why he should not be discharged. The
recruit must furnish his representation in writing and it
will be duly considered by the Superintendent of Police
before passing the orders of discharge.
(3) Every order passed by a Superintendent under
10
sub-paragraph (2) above shall, subject to the control of
the Deputy Inspector General be final."
Are the Regulations statutory
In Niranjan Singh Vs State of U P
6
, a Bench of four learned
Judges of the Supreme Court had held that Rule 109 of Chapter XI of the
Police Regulations dealing with the investigation of crimes which enjoins
upon a police officer where an investigation is closed for the day, to note
the time and place at which it is closed and to send the diary daily to the
Superintendent of Police on all days on which any proceedings are taken,
had no statutory force. The Supreme Court held that Rule 109 had no
statutory foundation but was only an injunction of the executive
government to police officers of the manner in which they must regulate
their work and conduct themselves during investigation. The Supreme
Court observed as follows:
"The question, therefore, is whether the action of
the Sub-Inspector amounts to a violation of a statutory
duty enjoined on him. If the Uttar Pradesh Police
Regulations were a set of rules framed under any statute,
and as such have the force of law, then a violation of any
rule thereunder, may either amount to an illegality or an
irregularity which may or may not vitiate the
proceedings. The Police Act, 1861 was enacted to
reorganize the police and to make it a more efficient
instrument for the prevention and detection of crimes,
whereby the State Government is given authority to
appoint police officers, such as the Inspector-General,
6AIR 1957 SC 142
11
etc. Under Section 12 of that Act, the Inspector-General
of Police may, from time to time, subject to the approval
of the State Government, frame such rules and orders as
he shall deem expedient relative to the organization,
classification and distribution of the police force, the
places at which the members of the force shall reside,
and the particular services to be performed by them;
their inspection, the description of arms, accoutrements
and other necessaries to be furnished to them; the
collecting and communicating by them of intelligence
and information, and all such other orders and rules
relative to the police force as the Inspector-General shall,
from time to time, deem expedient for preventing abuse
or neglect of duty, and for rendering such force efficient
in the discharge of its duties. It is not as if these police
regulations are rules framed by the Inspector-General in
accordance with section 12; but they are the result of the
State Government laying down the mode of conduct and
how the officers have to perform their duties. Rule 109
in Chapter XI dealing with the investigation of crimes
enjoins upon the police officers when an investigation is
closed for the day to note the time and place at which it
closed and also lays down that throughout the
investigation the diary must be sent daily to the Police
Superintendent on all days on which any proceedings are
taken. If the investigating officer is not himself in-
charge of the station, the diary must be sent through the
officer in-charge except when this will cause delay. It
also directs the police officer to study carefully sections
162 and 173 of the Code of Criminal Procedure.
Nowhere in the rules is it stated that there is any
statutory authority for the framing of Rule 109, nor is
12
it said to form any addition to a statute, even though
some other rules are expressly stated to be statutory
ones. Such being the case, it is clear that Rule 109 has
no statutory foundation but is only an injunction by
the executive Government to the police officers as to
how they must regulate their work and conduct
themselves during the course of investigation.
(emphasis supplied)
In Babu Ram Upadhya (supra), the Constitution Bench of the
Supreme Court observed that Regulation 477 of the Police Regulations
showed that the rules in Chapter XXXII were framed under Section 7 of
the Police Act. The Supreme Court observed that “presumably they were
also made by the Government in exercise of its power under Section 46
(2) of the Police Act”
7
. The Supreme Court observed as follows:
"What then is the effect of the said propositions in
their application to the provisions of the Police Act and
the rules made thereunder? The Police Act of 1861
continues to be good law under the Constitution.
Paragraph 477 of the Police Regulations shows that
the rules in Chapter XXXII thereof have been framed
under S. 7 of the Police Act. Presumably, they were
also made by the Government in exercise of its power
under S. 46(2) of the Police Act. Under para 479(a) the
Governor's power of punishment with reference to all
officers is preserved; that is to say, this provision
expressly saves the power of the Governor under Art. 310
of the Constitution.
Rules made under a statute must be treated for all
7at para 23
13
purposes of construction or obligation exactly as if they
were in the Act and are to be of the same effect as if
contained in the Act, and are to be judicially noticed for
all purposes of construction or obligation": see Maxwell
“On the Interpretation of Statutes”, 10th edn., pp. 50-51.
The statutory rules cannot be described as, or equated
with, administrative directions. If so, the Police Act and
the rules made thereunder constitute a self-contained
code providing for the appointment of police officers and
prescribing the procedure for their removal. It follows
that where the appropriate authority takes disciplinary
action under the Police Act or the rules made thereunder,
it must conform to the provisions of the statute or the
rules which have conferred upon it the power to take the
said action. If there is any violation of the said provisions,
subject to the question which we will presently consider
whether the rules are directory or mandatory, the public
servant would have a right to challenge the decision of
that authority." (emphasis supplied)
In Kharak Singh Vs State of U P
8
, the Supreme Court dealt with
the constitutional validity of the provision for domiciliary visits in
Regulation 236 (b) of Chapter XX of the Police Regulations. While
dealing with the challenge on the ground that Regulation 236 (b) was
violative of the fundamental rights conferred by Part III of the
Constitution, a Bench of six learned Judges of the Supreme Court noted
that though the counsel for the State of U P had attempted a justification
by invoking Section 12 of the Police Act, it was conceded that the
Regulations contained in Chapter XX had “no such statutory basis but
8AIR 1963 SC 1295
14
were merely executive or departmental instructions framed for the
guidance of the police officers”
9
. The Supreme Court, therefore, held that
this would not be a law which the State was entitled to make under
clauses 2 to 6 of Article 19 in order to regulate or curtail fundamental
rights conferred by Article 19 (1), nor would it be a procedure established
by law within the meaning of Article 21.
In a later decision of two learned Judges of the Supreme Court in
Ajay Kumar BhuyanVs State of Orissa
10
, the Supreme Court, while
examining the provisions of the Orissa Police Manual, 1940, observed
that only some of its provisions had statutory force and effect:
"We have gone through the Police Manual. The
entirety of the so-called Rules contained in the Manual
are called rules not because that everyone of them had
statutory backing or source of its origin in a statute but
were rules designed for uniform application in the Police
Department at the level of DGP/IG and below even at the
district level. No serious effort seems to have been made
to scan through the Police Manual which contains a
preface note that the Orissa Police Manual, 1940 contains
the Rules made by the State Government and rules and
orders framed by the IG of Police (Presently DGP/IG)
with the approval of the State Government under the
provisions of the Police Act, 1861 and are issued under
the authority of the Government to be binding on all the
police officers and that it is an authoritative guide to the
officers of the Department. In some only of the Rules
printed in the book, on going through the body of the
9at para 5
10(2003) 1 SCC 707
15
Manual we find that an asterisks mark is assigned with a
footnote that they were rules made under Section 12 or
45 of the Police Act, 1861. Again in respect of some of
the other provisions indication of the statutory provisions
of the Criminal Procedure Code or other statutory
provisions under which they have been made are
specifically mentioned. At the top of some of the
chapters, particularly Chapter XX relating to
appointments and engagement, a specific note is found
printed (that rules marked with asterisks have been
sanctioned under Section 7 of the Police Act, 1861). The
conspicuous omission or absence of such specific
indication either in the top of Chapter XXVII or in
respect of anyone of the so-called rules enumerated
thereunder, as to their nature and character or showing
them to have any statutory origin, it has to be presumed
reasonably and necessarily to be not statutory.
Dwelling upon the judgment of the Constitution Bench in Babu
Ram Upadhya (supra), the Supreme Court observed that what was
considered to be continued by virtue of Article 313 of the Constitution as
existing law were only those statutory rules and regulations made in
exercise of the powers conferred under the Police Act which stood
preserved under Section 243 of the Government of India Act, 1935 and
which were held to continue to be in force even after the enforcement of
the Constitution. The Supreme Court observed that laws in force for the
purposes of Article 313 of the Constitution were considered to be only
those which were framed in the exercise of various statutory powers
vested with the Government including the powers under Section 7 of the
16
Police Act and not upon each and every one of the 'so called rules'.
Article 309 of the Constitution and the Rules
Now, it is in this background that we must have due regard to the
applicability of the rules framed under Article 309 of the Constitution to
the police force. Before we do so, it is necessary to recapitulate that
Section 2 of the Police Act mandates that the entire police establishment
under a State Government is deemed to be one police force for the
purposes of the Act. The force is to be formally enrolled and is to consist
of such number of officers and men, and shall be constituted in such
manner, as shall from time to time be ordered by the State Government.
Moreover, the pay and all other conditions of service of the members of
subordinate ranks of the police force shall be such as may be determined
by the State Government subject to the provisions of the Act. Three
aspects of the provision stand out. The first is that for the purposes of the
Act, the entire police establishment under a State Government is deemed
to be one police force. The second is that the State Government is
empowered, from time to time, to order the formal enrolment of the force,
the strength of the force consisting of officers and men and the manner in
which the force shall be constituted. The third aspect is that the pay and
all other conditions of service of members of the subordinate ranks of the
police force are to be such as is determined by the State Government
subject, however, to the provisions of the Act. Under Section 7, the power
to dismiss, suspend or reduce any police officer of the subordinate ranks
17
is subject to Article 311 of the Constitution and to such rules as the State
Government may, from time to time, make under the provisions of the
Act. A specific rule-making power is conferred upon the State
Government by Section 46 (2) (c) generally for giving effect to the
provisions of the Act. The decision of the Constitution Bench in Babu
Ram Upadhya (supra) holds that the Police Act and the rules framed
under it constitute a self-contained Code.
The Uttar Pradesh Temporary Government Servants (Termination
of Service) Rules of 1975 have been made by the Governor in exercise of
the powers conferred by the proviso to Article 309 of the Constitution.
Rule 1(3) provides that the Rules shall apply to all persons holding civil
posts in connection with the affairs of the State of Uttar Pradesh and who
are under the rule-making control of the Governor, but do not hold a lien
on permanent posts in the Government. Temporary service in Rule 2
means officiating or substantive service on a temporary post or officiating
service on a permanent post under the Uttar Pradesh Government. Under
Rule 3(1), notwithstanding anything to the contrary in any existing rules
or orders on the subject, the services of a Government servant in
temporary service shall be liable to termination at any time by notice in
writing given either by the Government servant to the appointing
authority or by the appointing authority to the Government servant. Rule
3 (2) stipulates that the period of notice shall be one month, and for a
payment in lieu of the notice to the extent of the shortfall. Rule 5 rescinds
an earlier rule dated 30 January 1953 framed by the Appointment
18
Department.
Article 309 of the Constitution provides as follows:
"309. Recruitment and conditions of service of
persons serving the Union or a State.- Subject to the
provisions of this Constitution, Acts of the appropriate
Legislature may regulate the recruitment, and conditions
of service of persons appointed, to public services and
posts in connection with the affairs of the Union or of any
State:
Provided that it shall be competent for the
President or such person as he may direct in the case of
services and posts in connection with the affairs of the
Union, and for the Governor of a State or such person as
he may direct in the case of services and posts in
connection with the affairs of the State, to make rules
regulating the recruitment, and the conditions of service
of persons appointed, to such services and posts until
provision in that behalf is made by or under an Act of the
appropriate Legislature under this article, and any rules
so made shall have effect subject to the provisions of any
such Act"
Under the substantive part of Article 309, the recruitment and
conditions of service of persons appointed to public services and posts in
connection with the affairs of the Union or of any State are to be governed
by enactments of the appropriate legislature – Parliament or the State
legislatures, as the case may be – subject to the provisions of the
Constitution. The proviso to Article 309 enables the President in respect
of services and posts in connection with the affairs of the Union, and the
19
Governor in the case of services and posts in connection with the affairs
of the State, to make rules regulating the recruitment and the conditions of
service of persons appointed to such services and posts. However, the
rules framed by the President or by the Governor under the proviso to
Article 309 shall continue to operate until a provision is made in that
behalf by or under an Act of the appropriate legislature under the Article.
Hence, the rules which have been made by the President or the Governor
under the proviso to Article 309 shall have effect, subject to the
provisions of an enactment made by Parliament in the case of services and
posts in connection with the affairs of the Union and by the State
legislatures in connection with those of the affairs of the States. Once
Parliament or, as the case may be, the State legislatures have enacted
legislation on the subject, the rules framed by the President or the
Governor under Article 309 would necessarily be subject to the enactment
made by the appropriate legislature.
This legal position has consequences in regard to the applicability
of the rules framed under Article 309, in a situation where an enactment
of the central or state legislature is held to occupy the field. Where
central legislation occupies the field in regard to the regulation of the
conditions of service of persons employed in connection with the affairs
of the Union, those conditions of service are as defined in the legislation
enacted by Parliament on the subject. The rules under Article 309 would
necessarily be subservient. The same position would obtain in respect of a
law enacted by a State legislature, in which event the rules framed by the
20
Governor under the proviso to Article 309 would be subject to the State
enactment.
Precedent
There are several decisions of the Supreme Court which settle the
legal position. In A B Krishna Vs State of Karnataka
11
, the State
Government in exercise of its powers under Section 39 of the Fire Force
Act, 1964 framed the Mysore Fire Force (Cadre Recruitment) Rules, 1971
by which a qualifying examination was made a condition precedent for
promotion. Subsequently, the State Government, in pursuance of a policy
decision, amended the Karnataka Civil Services (General Recruitment)
Rules, 1971 which were framed under Article 309 so as to allow
promotions on the basis of selection or, as the case may be, seniority cum
merit but without a qualifying examination. The issue was, whether the
requirement of a qualifying examination under the Mysore Fire Force
(Cadre Recruitment) Rules, 1971 was modified by the subsequent
amendment to the Karnataka Civil Services (General Recruitment) Rules,
1971 framed for the civil services under Article 309. Dealing with the
issue, the Supreme Court observed as follows:
"The Fire Services under the State Government
were created and established under the Fire Force Act,
1964 made by the State Legislature. It was in exercise of
the power conferred under Section 39 of the Act that the
State Government made Service Rules regulating the
conditions of Fire Services. Since the Fire Services had
been specially established under an Act of the Legislature
11(1998) 3 SCC 495
21
and the Government, in pursuance of the power conferred
upon it under that Act, has already made Service Rules,
any amendment in the Karnataka Civil Services (General
Recruitment) Rules, 1977 would not affect the special
provisions validly made for the Fire Services. As a matter
of fact, under the scheme of Article 309 of the
Constitution, once a legislature intervenes to enact a law
regulating the conditions of service, the power of the
Executive, including the President or the Governor, as the
case may be, is totally displaced on the principle of
"doctrine of occupied field". If, however, any matter is
not touched by that enactment, it will be competent for
the executive to either issue executive instructions or to
make a rule under Article 309 in respect of that matter."
The Supreme Court observed that though the rule-making authority both
under Article 309 and under Section 39 of the State Act may be the same,
the jurisdictions were different and the power under Article 309 could not
be exercised by the Governor if the legislature had already made a law
and the field is occupied:
"It is no doubt true that the rule-making authority
under Article 309 of the Constitution and Section 39 of
the Act is the same, namely, the Government (to be
precise, the Governor, under Article 309 and Government
under Section 39), but the two jurisdictions are different.
As has been seen above, power under Article 309 cannot
be exercised by the Governor, if the legislature has
already made a law and the field is occupied. In that
situation, rules can be made under the law so made by the
legislature and not under Article 309. It has also to be
22
noticed that rules made in exercise of the rule-making
power given under an Act constitute delegated or
subordinate legislation, but the rules under Article 309
cannot be treated to fall in that category and, therefore, on
the principle of "occupied field", the rules under Article
309 cannot supersede the rules made by the legislature."
The Supreme Court held that the amendment which was made in the
General Recruitment Rules by the State Government under Article 309 of
the Constitution would not have the effect of displacing or altering the
rules made under Section 39 of the Fire Force Act, since an enactment of
the legislature would have preference over any rule made by the executive
under the proviso to Article 309. The Supreme Court held that there was
no abrogation by implication and the State Government had not
specifically abrogated the rules framed under the Fire Force Act 1964.
The judgment in A B Krishna (supra) was followed by another
Bench of two learned Judges of the Supreme Court in Chandra Prakash
Tiwari (supra). This judgment specifically dealt with the rules framed by
the Governor of Uttar Pradesh under Article 309 of the Constitution and
their applicability in view of an order which was made in pursuance of the
Police Act. On 5 November 1965, the Governor issued a direction to the
effect that promotions from the post of Sub Inspectors to Inspectors
would be made on the basis of merit. Under the Uttar Pradesh
Government Service (Criterion for Recruitment by Promotion) Rules,
1994 framed by the Governor under the proviso to Article 309 of the
Constitution, the criterion for promotion was seniority subject to rejection
23
of the unfit. The Supreme Court, after adverting to the earlier decision in
A B Krishna, held that the Police Act was a complete Code in itself
which had made special statutory provisions for appointment, dismissal,
placement and all other steps required to reorganise the police and to
make it a more efficient instrument for the prevention and detection of
crime. The Supreme Court held that unless the specific provisions
contained in the Government Order dated 5 November 1961 which have
been framed under the provisions of the Police Act was repealed, the
general rules framed under Article 309 of the Constitution would not
prevail. In that context, 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 guide-lines 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
24
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 7th 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...”
The Full Bench decisions
Now, it is in this background that it would be necessary to advert to
two decisions of the Full Bench of this Court, namely (i) Nanak Chand
Vs State of U P
12
; and (ii) Vijay Singh Vs State of U P
13
.
In Nanak Chand (supra), orders had been passed terminating the
121971 ALJ 724
132005 (23) LCD 1696
25
services of Sub Inspectors of police or, as the case may be, police
Constables treating them as temporary employees. The orders of
termination were sought to be challenged on the ground that though the
advertisements under which the petitioners were appointed, were for
temporary appointments and they were appointed in a purely temporary
capacity, they would be deemed to hold permanent posts because there
was no provision for the creation of temporary posts in the Act or the
Rules. The Full Bench held that there was no provision in the Police Act
or in the Regulations which was incompatible with the existence of
temporary posts. The Full Bench observed as follows:
"We are unable to see, however, how the
provisions in the Police Act and in the Police
Regulations to which our attention has been drawn can
be said to support the argument put forward by learned
counsel for the petitioners. No section of the Police Act
and no Paragraph of the Police Regulations has been
brought to our notice that is incompatible with the
existence of temporary posts in the police force. Sec.
2 of the Police Act lays down that the police
establishment under a State Government "shall be
constituted in such manner as shall from time to
time be ordered by the State Government"; and this
power to constitute the police force clearly includes
the power to create all kinds of posts in that force,
both permanent and temporary. The mere fact that
when a police officer joins the police force, he is
formally enrolled therein by being given a certificate in
accordance with Sec. 8, investing him with all the
26
powers, functions and privileges of the police officer, in
no way implies that he must be a permanent officer, for
there seems to be no reason why a temporary employee
should not also be invested with all these powers. And
even assuming that Secs. 13, 14, 15 and 17 of the Act
relate to temporary appointments (which is decidedly
doubtful in the case of the first three sections), there is
nothing to suggest that these are the only temporary
appointments that can be made under the Police Act.
Ample material has been produced on behalf of the
State Government in the counter affidavits that have
been filed in reply to these petitions to show that police
officers have been regularly recruited on a temporary
basis each year for a considerable number of years; and
we can see nothing illegal or incompatible with the
provisions of the Police Act in such recruitment. The
misapprehension that temporary posts in the Police
Force are not contemplated by the Police Act and the
Police Regulations seems to have arisen on account of
the complete absence from the Police Regulations of
any rules or instructions in respect of temporary police
officers. But this is probably due to the fact that the
Regulations in question were framed long ago, at a time
when it was not considered necessary to have any
temporary posts.” (emphasis supplied)
Reliance was sought to be placed, inter alia, on the provisions
contained in Regulation 541 of the Police Regulations dealing with
probation. The Full Bench held that Chapters XXXVI and XXXVII of the
Police Regulations, which dealt with the training of Sub Inspectors and
Constables respectively, were never meant to apply to temporary recruits.
27
The Full Bench observed that Regulations 534, 535, 537 and 541 on
which reliance had been placed, were not shown to have statutory force
and merely embodied administrative instructions on what was necessary
by way training and experience before a police officer can be fit for
permanent appointment. The Full Bench held:
"We are fully satisfied, however, that Chapters
XXXVI and XXXVII were never meant to apply to
temporary recruits. Moreover the paragraphs on which
reliances have been placed have not been shown to have
statutory force; and to us it appears that they merely
embody administrative directions as to what is
necessary by way of training and experience before a
police officer can be considered fit for permanent
appointment. It has been explained in the supplementary
counter affidavits filed on behalf of the State that the
procedure now followed by the police administration is
to keep all recruits in temporary posts until the Head of
the Department decided to bring them into the
permanent strength, whereupon those who are found
suitable are absorbed in clear vacancies, the last two
years of temporary service being then counted as a
probationary period.”
The next submission before the Full Bench was that the orders of
termination were invalid because there was no specific provision in the
Police Act or the Regulations for the termination of services of temporary
employees. In order to justify the termination of appointees, the Full
Bench observed as follows:
28
"It has been argued that the impugned orders of
termination are bad because there is no specific
provision in the Police Act or Police Regulations for
such termination of services. But temporary police
officers, like other temporary government servants, are
obviously covered by the Notification dated 30-1-1953
that has been reproduced in Appendix II to the Civil
Services (Classification, Control and Appeal) Rules and
their services are terminable on one month's notice or
one month's pay in lieu of notice. Learned counsel for
the petitioners points out that this Notification was
issued in exercise of the powers conferred by the
proviso to Article 309 of the Constitution and contends
that it cannot apply to members of the Police Force,
since they are governed solely by the provisions of the
Police Act and the rules issued thereunder. But even it is
correct to say that only the Police Act and its rules can
regulate the conditions of service of police officer, we
see no difficulty in applying the Notification in question
to the petitioners, since it can be treated as having been
issued, as regards police officers, in exercise of the rule
making power conferred on the State Government by
Sec. 16(2) of the Police Act.”
At this stage, it is necessary for the Court to dwell on two aspects of
the decision in Nanak Chand (supra) : (i) the observation that
Regulations 534, 535, 537 and 541 of the Police Regulations had no
statutory force but merely embodied administrative instructions or
directions; and (ii) the termination of services of temporary police officers
could be brought about in terms of the notification dated 30 January 1953
29
issued under Article 309 of the Constitution and that the notification, in
any event, could be treated as having been issued as regards the police
officers, in exercise of the rule making power conferred by Section 46 (2)
on the State Government.
On the first aspect, it would be necessary for the Court to advert to
a decision of the Supreme Court in Chandra Prakash Shahi Vs State of
U P
14
. In that case, the appellant was recruited as Constable in the
Provincial Armed Constabulary
15
and was placed on probation for two
years. His services were sought to be terminated by issuing a simple
notice under Rule 3 of the Rules of 1975. The Supreme Court observed,
firstly, that the foundation of the order of termination was that the
appellant had been found guilty of indiscipline and misbehaviour in a
preliminary enquiry, during the course of a camp in which a quarrel
resulting in physical abuse had taken place. The Supreme Court held that
it was open to the Court to lift the veil of an innocuously worded order to
determine as to whether it was punitive in nature. The Supreme Court
came to the conclusion that the order of termination was founded on
misconduct and was, hence, punitive. The second aspect of the matter to
which the judgment of the Supreme Court made a reference, was that the
termination of services of the probationer had taken place in violation of
Regulation 541 of the Police Regulations. The Supreme Court, in the
following observations, held that Regulation 541 was mandatory in
nature:
142000 (3) AWC 1848 (SC)
15PAC
30
"Where, therefore, the services of a probationer
are proposed to be terminated and a particular procedure
is prescribed by the Regulations for that purpose, then
the termination has to be brought about in that manner.
The probationer-constable has to be informed of the
grounds on which his services are proposed to be
terminated and he is required to explain his position.
The reply is to be considered by the Superintendent of
Police so that if the reply is found to be convincing, he
may not be deprived of his services.
If this procedure is followed and the services are
terminated thereafter, it would not amount to a punitive
action. The rule being mandatory in nature,
compliance thereof would not alter the nature of the
order passed against the probationer." (emphasis
supplied)
The Supreme Court also observed that there was a non-compliance with
the provisions of Regulation 541 since the services of the appellant were
terminated without issuing a notice intimating the grounds for termination
and without calling for an explanation. The Supreme Court held that the
termination was unlawful.
In view of the decision of the Supreme Court in Chandra Prakash
Shahi's case, the observation of the Full Bench in Nanak Chand (supra)
would, to that extent, have to give way to the law laid down by the
Supreme Court. The Supreme Court specifically held that compliance
with the provisions of Regulation 541 was mandatory before the services
31
of a probationer could be dispensed with. However, it must also be noted
that Chandra Prakash Shahi's case dealt with a case of a probationer
(not a temporary appointee) because, admittedly, the appellant in that case
was placed on probation for a period of two years and his services were
sought to be dispensed with without following the procedure prescribed
by Regulation 541. In Chandra Prakash Shahi, the appellant was not a
temporary employee.
The second aspect of the decision in Nanak Chand which needs
some clarification, is the observation that even if it is correct to say that
only the Police Act and its rules can regulate the conditions of service of a
police officer, the notification issued on 30 January 1953 can be treated as
having been issued in exercise of the rule-making power under Section 46
(2). Evidently, this observation in the judgment of the Full Bench is not a
conclusive finding which is evident from the use of words 'but even if it
is correct to say that only the Police Act and its rules can regulate the
conditions of service of police officers...' The decision in Nanak Chand
did not consider the question whether it was legally and constitutionally
permissible to apply the rules framed under Article 309 of the
Constitution to a police force governed by the Police Act. Every
observation in a judgment does not constitute a part of the ratio of the
decision. These observations in Nanak Chand did not constitute the ratio
of the judgment.
The other judgment of the Full Bench to which a reference must be
made at this stage, is in Vijay Singh (supra). In the case before the Full
32
Bench, the Governor had made the Uttar Pradesh Recruitment of Service
(Age Limits) Rules 1972 in exercise of the powers conferred by Article
309 of the Constitution. The issue before the Full Bench was, whether an
order issued by the State Government in exercise of its powers under
Section 2 of the Police Act, had statutory force and occupied the field as a
result of which there would be no scope for application of the rules
framed under the proviso to Article 309. The Rules framed under the
proviso to Article 309 provided for a maximum age limit of 32 years for
all posts to be filled up by the Rules and the eligibility criteria fixed by
the State Government for the recruitment of police personnel was sought
to be challenged on the ground that it was in violation of the Rules of
1972. The Full Bench held, after adverting to the decisions of the
Supreme Court in A B Krishna (supra) and Chandra Prakash Tiwari
(supra), among other decisions, as follows:
"48. Thus, it is evident that doctrine of implied
repeal cannot be resorted to unless the latter enactment
expressly repeals or it is crystal clear that legislature
intended to repeal the earlier statutory provisions.
49. Thus, in view of the above, as the State
Government has never adopted the Rules 1972 for
filling up the vacancies of the subordinate police
services, the question of implied repeal does not
arise.
50. As the State Government has not adopted the
Rules 1972 for filling up the vacancies of subordinate
33
police officials, it cannot be assumed that statutory
provisions of Act, 1861 stood repealed. Thus,
provisions of Act 1861 (Special Act) will prevail over
Rules 1972 general law." (emphasis supplied)
The conclusion which was arrived at by the Full Bench was in the
following terms:
"63. In view of the above, we reach the
inescapable conclusion that statutory rules cannot be set
at naught by issuing executive instructions. But the facts
of the instant case do not make the said proposition of
law applicable at all. As herein the field is already
occupied by the provisions of Act 1861 which is in
operation by virtue of the provisions of Article 313 of
the Constitution, thus Rules 1972 could not be
attracted at all. The Government Orders issued for
fixing the maximum age for recruitment on subordinate
police posts operate in an entirely different field and are
not in conflict with the Rules 1972. The case stands
squarely covered by the Apex Court judgment in
Chandra Prakash Tiwari (supra) and, thus, it is not
possible for us to take any other view. The submissions
made by Mr. Chaudhary that pre-constitutional law
stands abrogated altogether by commencement of the
Rules, 1972, is devoid of any merit. Therefore, our
answer to question No.1 is that the field stood occupied
on account of the provisions of Section 2 of the Act
1961. The Legislature while enacting the provisions of
Section 2 of Act 1961 itself delegated the power to the
statutory authorities to fix the eligibility including the
age etc. The statutory authorities had performed their
34
duties in exercise of the delegated powers from time to
time without any deviation there-from." (emphasis
supplied)
The principles of law
Insofar as the present controversy is concerned, it would now be
necessary for the Court to formulate the basic principles which have
emerged on the subject:
(i) The Police Act 1861 and the Rules framed under it constitute a self-
contained Code and by virtue of the provisions of Article 313 of the
Constitution, the Act and the Rules continue to remain in force, under
Article 313 of the Constitution;
(ii) Rules and Government Orders referable to a specific source of power
under the Police Act 1861 such as Section 2 or, as the case may be,
Section 46 (2) (c) would continue to hold the field and would not be
abrogated merely by the exercise of the general rule-making power
conferred by the proviso to Article 309 of the Constitution;
(iii) Under the proviso to Article 309, rules regulating the recruitment and
conditions of service of persons appointed to services and posts in
connection with the affairs of the Union and of the States can be made
until a provision in that behalf is made by or under legislative enactment
of the appropriate legislature. Any rule so made will have effect subject to
the provisions of the Act;
35
(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
36
Constitution is ensured by Article 313 and Article 372 of the Constitution,
the field relating to recruitment and conditions of service of members of
the police force in the State stands occupied by the legislation. Any rule
or order relating to the determination of the conditions of service of the
police force can be made only under the provisions of the Police Act or
by the legislation enacted by the State legislature governing the service
conditions of the police force. Section 2, Section 7 and Section 46 of the
Police Act clearly evince an intent of the legislature to occupy the whole
of the field relating to conditions of service of the police force;
(viii) The ratio of the decision of the Supreme Court in A B Krishna's
case is that if the legislature has already made a law and the field is
occupied, in such a situation, rules can be made under the law enacted by
the legislature and not under Article 309;
(ix) The rules framed under a legislative enactment constitute delegated
or subordinate legislation. The rules made under Article 309 are not of
that nature. The rules which have been framed under Article 309 and the
rules under an enactment of the state legislature are referable to two
distinct sources of power. The rules made under the proviso to Article 309
are intended to deal with a situation where the President or the Governor,
as the case may be, may regulate the recruitment and conditions of
service of persons appointed to services and posts in connection with the
affairs of the Union or, as the case may be, of the States until a provision
in that behalf is made under an Act of the appropriate legislature under
37
the Article. Though, the authority to frame rules in Article 309 vests with
the Governor while the authority to frame subordinate legislation under
the state enactment is vested with the State Government, the two
jurisdictions are entirely different. One is referable to a transitional power
which is vested in the President or the Governor, as the case may be,
under the proviso to Article 309 while the other is traceable to the
substantive power to frame subordinate legislation which is delegated to
the State Government under a legislative enactment. Once a law has been
enacted by the competent legislature and particularly in a situation where
legislation, such as the Police Act is construed as a complete Code, it
constitutes special statute governing the police force incorporating within
its field, matters relating to appointment, dismissal, placement and all
other steps required to reorganise the police and make it a more effective
instrument for the prevention and detection of crime, as was held in
Chandra Prakash Tiwari's case by the Supreme Court;
(x) In Chandra Prakash Tiwari, the Supreme Court after considering
the consistent position of the State Department of Home, held that 'by
reasons of the provisions of a special statute, namely, the Police Act read
with the authorization contained therein by way of executive order, the
Governor of Uttar Pradesh obviously did not in fact intend to apply the
general law to all and sundry'
16
. In this background, it has been held that
unless the general rules which are framed under Article 309 of the
Constitution specifically repeal the special rules and unless there is a
16at para 29, page 145
38
specific repeal of the existing law, the question of an implied repeal
would not arise
17
. 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.
There are observations in the concluding sentence of paragraph 8 of
the decision in A B Krishna's case to the effect that if any matter is not
touched by an enactment made by the legislature, it would be competent
for the executive to either issue an executive instruction or to make a rule
under Article 309 in respect of that matter. This observation cannot be
pressed in aid of the operation of the rules framed under the proviso to
Article 309 and their applicability to the police force. The exception
17Pras 36 and 37 at p 149 and 150
39
which has been carved out in those observations may apply in a situation
where a particular matter is not touched by the legislation enacted by the
competent legislature. This, for instance, may be a situation where the
statute by itself lays down the conditions of service but does not touch or
regulate upon some matter relating to conditions of service nor does it
contain a provision for delegated or subordinate legislation. That is not
the situation in the case of the Police Act. The Police Act empowers the
State Government to determine under Section 2, the pay and all other
conditions of service of the members of the subordinate ranks of the
police force subject to the provisions of the Act. The expression 'all other
conditions of service' would encompass every condition of service of the
members of the police force. Section 7 which deals with the appointment,
dismissal and reduction in rank of officers of the subordinate ranks again
refers to the rules framed by the State Government. Section 46 (2)
empowers the State Government to frame rules generally for giving effect
to the provisions of the Act. These are clear legislative indicia of the
intent of the legislature to enact a self-contained Code regulating the
police service and of the conferment of both administrative and rule-
making authority upon the State Government to regulate all service
conditions. In such a situation and in the face of a clear legislative intent
evidenced both by the provisions of the Act and by the decisions of the
Supreme Court, it would be manifestly erroneous for the Court to
subscribe to the theory that the rules under Article 309 of the Constitution
framed by the Governor would apply. Such a construction cannot be
40
accepted on the basis of a plain textual interpretation of the provisions of
the Police Act. Such a construction, as the Supreme Court observed in
Chandra Prakash Tiwari's case, would be contrary to the grain of the
inter-ministerial position adopted by the State Government. Finally, such
a construction would run contrary to the interpretation placed by the
Supreme Court on the Police Act as constituting a self-contained Code.
The Police Act occupies the field of the regulation of service conditions of
the police force.
The provisions of the Police Act and the rules, regulations and
orders issued thereunder also apply to the officers of the PAC in view of
the provisions of Section 5 of the U P Pradeshik Armed Constabulary Act,
1948 which reads as follows:
"5. Members of P.A.C. to be deemed Police
officers.- Subject always to the provisions of Sections 6
to 8 every member of the Pradeshik Armed
Constabulary shall upon his appointment and as long as
he continues to be a member thereof, be deemed to be a
Police officer, and, subject to any terms, conditions and
restrictions, as may be prescribed, to have and be
subject to, insofar as they are not inconsistent with this
Act or any rules made thereunder, all the powers,
privileges, liabilities, penalties, punishments and
protection as a Police officer duly enrolled has or is
subject to by virtue of the Police Act, 1861, or any other
law for the time being in force, or any rules or
regulations made thereunder.”
Under Section 5, every member of the PAC upon his appointment
41
and subject to continuance as a member of the force is deemed to be a
police officer. As a police officer, a member of the PAC is subject to any
terms, conditions and restrictions as may be prescribed and is subject to
all powers, privileges, liabilities, penalties, punishments and protection as
a police officer duly enrolled by virtue of the Police Act or any other law
for the time being in force including rules and regulations made
thereunder.
The Rules of 1975 framed under Article 309 have not been adopted
or applied by the State Government specifically for the members of the
police force by issuing an order under Section 2 or by framing a rule
under Section 46 (2) (c) of the Police Act. The Rules of 1975 are hence
not ipso facto applicable to temporary members of the police force.
However, this does not mean that the services of such temporary
employees cannot be terminated until rules or orders regulating them are
made under Section 2 or Section 46 (2) (c) of the Police Act. The services
of such a person being purely temporary are terminable by an action
simplicitor when they are not required or where the person appointed is
unsuitable for being continued in service. The power to appoint
necessarily inheres within it the power to terminate services. To hold that
the State Government which has the power to appoint a member of the
police force on a temporary basis does not have the power to terminate
such a person from service would be an absurdity. Nor can a person who
has been appointed on a temporary basis, claim the protection of
42
Regulation 541 which, on its plain terms, applies only to probationers. A
person who is appointed on a temporary basis or in a temporary capacity
is not a probationer. Chandra Prakash Shahi clearly was a case relating
to a probationer whose services were sought to be terminated under the
Rules of 1975 framed under the proviso to Article 309 of the Constitution
which apply to government servants generally. The appellant in Chandra
Prakash Shahi's case was not appointed on a temporary basis but was a
probationer.
In Secretary, State of Karnataka Vs Umadevi
18
, a Constitution
Bench of the Supreme Court has recognised the right of the Union or
State Governments to make temporary appointments and has held that
there is nothing in the Constitution to prohibit the engagement of persons
temporarily or on daily wages, to meet the needs of the situation
19
:
“In spite of this scheme, there may be
occasions when the sovereign State or its
instrumentalities will have to employ persons, in
posts which are temporary, on daily wages, as
additional hands or taking them in without following
the required procedure, to discharge the duties in
respect of the posts that are sanctioned and that are
required to be filled in terms of the relevant
procedure established by the Constitution or for work
in temporary posts or projects that are not needed
permanently. This right of the Union or of the State
Government cannot but be recognised and there is
nothing in the Constitution which prohibits such
18(2006) 4 SCC 1
19at para 12, page 22
43
engaging of persons temporarily or on daily wages,
to meet the needs of the situation. But the fact that
such engagements are resorted to, cannot be used to
defeat the very scheme of public employment. Nor
can a court say that the Union or the State
Governments do not have the right to engage persons
in various capacities for a duration or until the work
in a particular project is completed. Once this right of
the Government is recognised and the mandate of the
constitutional requirement for public employment is
respected, there cannot be much difficulty in coming
to the conclusion that it is ordinarily not proper for
the Courts whether acting under Article 226 of the
Constitution or under Article 32 of the Constitution,
to direct absorption in permanent employment of
those who have been engaged without following a
due process of selection as envisaged by the
constitutional scheme.”
Moreover, it has also been held that a temporary employee cannot claim
to be made permanent on the expiry of the term of appointment and it is
not open to the Court to prevent regular recruitment at the instance of
temporary employees whose period of employment has come to an end
20
.
We may briefly deal with some of the decisions of this Court on the
subject. In Subhash Chandra Sharma Vs State of U P
21
, a Division
Bench of this Court held as follows:
"... The constitution of a force necessarily implies
the act of making appointment to various categories of
20at para 43 page 36
212000 (3) AWC 2367
44
posts in the police force. Provisions in this regard have
been made in the U.P. Police Regulations or in the
Government Orders issued from time to time on the
subject relating to recruitment. Therefore, the field
relating to recruitment of subordinate ranks of the police
force is already covered by the provisions of the Police
Act. Consequently, a Rule made by the Governor in
exercise of power conferred by proviso to Article 309,
like the 1972 Rules, which is very general in terms and
does not make any reference to the police force, can
have no application to the matter governing the upper
age limit of the candidates seeking recruitment to the
posts of constables or sub-inspectors of police.”
The judgment of the Division Bench in Subhash Chandra
Sharma's case was affirmed by the Full Bench in Vijay Singh (supra).
In Vijay Shanker Tripathi Vs State Public Services Tribunal
22
, a
Division Bench of this Court held that the provisions of the Rules of 1975
are not applicable in view of the judgment of the Full Bench in Vijay
Singh's case.
In Praveen Tyagi Vs State of U P
23
, a learned Judge of this Court
followed the decision of the Supreme Court in Chandra Prakash Tiwari
and of the Full Bench in Vijay Singh, holding that Rules of 1975 made
under the proviso to Article 309 of the Constitution were not applicable
and quashed the termination.
In State of U P Vs Chandra Bhal Singh
24
, a Division Bench of this
222006 (5) AWC 4769
232010 (1) AWC 340
24(1981) 1 SLR 579
45
Court, while relying upon the judgment of the Full Bench in Nanak
Chandra, held Regulation 541 to be inapplicable to temporary employees
who could not be treated as having been appointed on probation.
A Division Bench of this Court in State of U P Vs Sageer
Hussain
25
held that Regulation 541 was not applicable to temporary
police officers. The Division Bench also held that there was no error in an
order of termination passed under the Rules of 1975 without considering
the applicability of those Rules to police officers.
We have briefly adverted to these decisions for the sake of
completeness of the record. However, we have already dealt with the issue
that has been raised before the Full Bench.
Conclusion
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 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.
252010 (28) LCD 505
46
The question which has been referred to the Full Bench for
adjudication shall, accordingly, stand answered in these terms. All the
petitions shall now be listed before the appropriate Bench in accordance
with the roster of work for disposal in the light of the present decision.
May 11, 2015
AHA
(Dr D Y Chandrachud, CJ)
(S N Shukla, J)
(Rajan Roy, J)
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