Charanjit Talwar, J.:— The petitioner, Shri Ram Pat, was enrolled as a Constable on 29th October, 1957, in the Delhi Police. He was promoted in officiating capacity as a Head Constable on 1st January, 1961 and was confirmed in that rank on 15th March, 1972.
2. The first grievance of the petitioner is that as per the provisions of Rule 13.18 of the Punjab Police Rules he ought to have been confirmed as a Head Constable with effect from 1st January, 1963. His seniority as a Head Constable it is urged, was to be fixed from the date of officiating appointment as has been prescribed in Rule 12.2(3) of the Rules. Mr. Dar, learned counsel for the petitioner, in support of the contention that the two years period of probation for promotee officials cannot be extended and, therefore, the petitioner ought to have been confirmed from 1st January, 1963, relies on two Division Bench judgments of this Court in Sat Pal, A.S.I v. The Delhi Administration Delhi (1) and Naut Ram, S.I v. Union of India (2) decided on 14th August, 1981.
3. Mr. Sharma, learned Counsel for the respondents, however, submits that in view of the law laid down by the Supreme Court in Partap Singh v. Union Territory of Chandigarh (3), the said judgments of this Court are impliedly over-ruled. In the Supreme Court case the facts were that the appellant had been appointed as a temporary S.I of police on 2nd July, 1973. On 26th September, 1977, his services were terminated by the Senior Superintendent of Police. The plea before the Supreme Court was that under Rule 12.8(1) of the Rules the appellant must be considered to be on probation for a period of three years only, and as he had crossed that period, he must be deemed to have been confirmed and, therefore, his services could not be terminated. After noticing the law laid down in an earlier decision of a five-judges bench in State of Punjab v. Dharma Singh (4) it was held that as the appellant was not appointed on probation but purely on temporary basis his services could be terminated at any time and that Rule 12.8(1) was not applicable in his case. The appeal, therefore, was dismissed.
4. The relevant provision relating to probationary period of promoted officers of the police is contained in rule 1 J. 18 of the Rules which is applicable in the present case. A bare reading of rule 13.8 of the Rules shows that it relates to Inspectors, Sergeants, Sub-Inspectors, and Assistant Sub-Inspectors who are directly appointed, whereas Rules 13.19 lays down the period of probation for officers who have been promoted in rank.
5. In my view the Division Bench authorities of this Court which have followed the law laid down by the Supreme Court in Dharam Singh's case (Supra) cannot be said to have been over-ruled by implication as submitted by Mr. Sharma. I may further point out that a similar submission was raised on behalf of the respondents before Chadha J. in Civil Writ No. 855 of 1970 (Subey Singh v. The Delhi Administration etc.) decided on 9th January, 1981. Before him also reliance was placed on Partap Singh's case in support of the submission that probationary period is deemed to be extended in spite of the expiry of period laid in Rule 13.18 On this aspect Chadha, J. has observed thus, The Supreme Court was concerned in that case with P.P.R 12.8 The appellant there was appointed purely on a temporary basis and not on probation and, therefore, Rule 12.8 which dealt with officials who were appointed on probation did not apply to that case at all. An observation was, however, made on Rule 12.8 on the assumption that Rule 12.8 applied to the appellant there. It was held that a probationer could not be deemed to be automatically confirmed in the absence of express order of confirmation and the probation is presumed to be extended. However, it was held that in view of the fact that Rule 12.8 is differently worded than Rule 13.18 the ratio of the decision in Partap Singh's case was not applicable. I agree with Chadha J. and following the law laid down by the Division Bench of this Court in the above said two cases. I hold that the petitioner is deemed to have been confirmed from 1st January, 1963, as a Head Constable and his seniority in that rank by virtue of Rule 12.2(3) is to be counted from 1st January, 1961. I order accordingly.
6. The next grievance of the petitioner is that the order dated 23rd November, 1970, passed by the Commandant Delhi Armed Police 1st Battallion imposing the penalty on the petitioner forfeiting his one year's approved service permanently entailing reduction in his pay from Rs. 124 to Rs. 121 per month with effect from the date of the impugned order, is invalid and without jurisdiction. A copy of that order is Annexure ‘J’ to the writ petition. The petitioner is seeking quashing of the same. I may note here that petitioner's appeal against that order was dismissed by the Deputy Inspector General of Police vide his order dated 27th October, 1973. His revision petition to the Inspector General of Police was dismissed on 25th June, 1974. Thereafter he filed the present petition. It is unnecessary to notice the article of charge on which the petitioner was tried departmentally. The precise submission is that the said punishment awarded under Rule 16.1(2) of the Rules was beyond the competence of the police authorities as that part of the Rule is ultra vires of Section 7 of the Police Act, 1861.
7. Section 7 of the Police Act which empowers superior officers of the police to impose punishment on the police officers of the subordinate ranks is 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 punishments which can be awarded have been enumerated in the section itself. It is useful to quote section 7 of the Act.
“7. Appointments, dismissal, etc., of inferior officers 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 this Act, the Inspector General, Deputy Inspector-General, Assistant Inspectors General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unit for the same.
or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely:—
(a) fine to any amount not exceeding one month's pay;
(b) confinement to quarters for a term not exceeding fifteen days, with or without punishments-drill, extra guard, fatigue or other duty;
(c) deprivation of good-conduct pay;
(d) removal from any office of distinction or special emolument.
8. As noticed above, the petitioner has been awarded the punishment of forfeiture of one year's approved service permanently entailing reduction in this pay. That punishment is not provided in the above section. It is however provided in clause 3 of Rule 16.1(2). That rule may be quoted.
“16.1(2) The departmental punishments mentioned in the second column of the subjoined table may be inflicted on officers of the various ranks shown in the heading Nos. 3 to 6 by the officer named below each heading in each case, or by any officer of higher rank:—
3. Stoppage of increment of forfeiture of approved service for increment.
9. It is thus apparent that penalty of forfeiture of “approved service for increment has been added to the punishments which are enumerated in Section 7 of the Police Act by the State of Punjab. The question is whether that is permissible ? The source of framing rules is derived by a State Government after the Act has been extended to the State. Sub-sections (2) and (3) respectively of section 46, inter alia, provide that when the whole or any part of the Act shall have been so extended the State Government may, from time to time, by notification in the official gazette make rules consistent with the Act and that all rules made under the Act may from time to time be amended, added to or cancelled by the State Government.
10. The Punjab Police Rules were issued by the Punjab Government in the year 1934 under Sections 7 and 12 of the Police Act, 1861. Since then amendments from time to time have been introduced in the rules. These rules were enforced in Delhi till the Delhi Police Act, 1978, was promulgated. Section 149 of the Act saves the operation of the Punjab Rules to the Union Territory of Delhi insofar as they are consistent with that Act but only upto the time rules under the Delhi Act are promulgated replacing the Punjab Police Rules Forfeiture of approved service has been provided as one of the punishments under section 21 of the Delhi Act. I may note here that vide East Punjab Act 30 of 1948 Section 7 of the Police Act was amended to include the punishment of stoppage of increment. Similar amendments in Section 7 whereby withholding of increment or promotion including stoppage of efficiency bar have been added, were made by some other States also. I am noticing this aspect to highlight that in the States wherever it was considered necessary that a penalty like the present be inserted, the amendment was made in the main Act by the Government concerned. The scope of the amended Punjab Police Rules framed by the State of Punjab which is in consonance with amended section 7 of the Act, is thus to give effect to the provisions of the Act and thus the Rules are valid in that State. However, the further submission is that the said punishment awarded in accordance with the said Rules, which have been extended to Delhi, is not valid in the Union Territory of Delhi.
11. A similar question arose in State of Punjab v. Inder Sain Sharma (5). In that case the Inspector General of Police PEPSU had ordered imposition of penalty of forfeiture of three years' approved service towards increment on-permanent basis. It was held that the imposition of such penalty being contrary to section 7 of the Pepsu Police Act was not legal. Mehar Singh, C.J speaking for the Division Bench observed that “penalty was impose, under section 7 of the Pepsu Police Act which did not contain the penalty of ‘stoppage of increments’ as has been the case in former State of Punjab where this penalty wasadded to Section 7 of the Police Act, 1861, by virtue of the Police (East Punjab Amendment) Act, 1968 (East Punjab Act 30 of 1948). Obviously, the Inspector-General of Police in Pepsu could not impose this penalty on then respondent under section 7 of the Pepsu Police Act, which penalty did not exist in this section. The imposition of such penalty was, therefore, contrary to section 7 of the Pepsu Police Act and thus not legal.”
12. The submission put forward on behalf of the State in that case which submission has been urged before me also was that where an authroity could impose the penalty of removal from service, it can impose a lesser penalty was negatived by the Punjab High Court in the aforesaid authority. With respect I agree with that view. I may note here that Mr. Sharma learned counsel for the State, conceded that Section 7 of the Police Act has not been amended in Delhi. Therefore, as the penalty imposed on the petitioner is not contained in Section 7 of the Police Act, 1861 that penalty could not be imposed on the petitioner. This view is further fortified by a judgment of the Supreme Court in Board of Directors of Andhra Pradesh Cooperative Central Land Mortgage Bank Ltd. v. Chittar Primary Cooperative Land Mortgage Bank Ltd. (6), wherein it has been held that rule making power conferred in the Government for purposes of carrying out the purposes of an enactment must be confined to such of the purposes as are enumerated or indicated in the preamble or any of the provisions of the Act.
13. It is admitted at the bar that Section 7 of the Police Act, 1861, as applicable in the Union Territory of Delhi, had not been amended so as to incorporate the punishment of forfeiture of approved service. The respondents have not even filed their counter-affidavit. Thus it is to be held that during the relevant period when the said rule was enforced in Delhi the said punishment under rules 161.1(2) could not be imposed. The result is that I quash the order dated 23rd November, 1970, whereby the punishment in question was imposed on the petitioner.
14. The petitioner in his petition has sought a further direction that he be sent to undergo intermediate school training course and thereafter to upper school training course, as persons junior to him had been sent to those courses. I may note here that under the orders of this Court the petitioner was sent by the respondents to undergo training for intermediate school training course. A Head Constable under the rules is required to pass this course before he can be considered for promotion to the rank of A.S.I Mr. Sharma learned counsel for the respondents, informs me that the petitioner has passed that course and thereafter was promoted as A.S.I in July, 1981. He continues to hold that rank. I may note another fact. A number of officiating Head Constables who had been promoted from the rank of constables had filed petitions in this court seeking fixation of their seniority as Head Constables in accordance with rule 13.18 read with Rule 12.2(3) of the P.P Rules. During the pendency of those petitions the petitioners under the orders of the Court were firstly sent for the intermediate school training course and thereafter they were sent to undergo the upper school training course. An A.S I is required to pass the latter course to enable him to get promotion to the next higher rank i.e, of Sub-Inspector. One of these petitions filed by Head Constable Kartar Singh's being CW 1569 of 1973 was decided by M.L Jain, J. vide his Judgment passed on 14th September, 1982. While directing that Kartar Singh was deemed to be confirmed after successful completion of probation period of two years it was ordered that his seniority as Head Constable be refixed from the date of his appointment as head constable. It was further ordered that on re-fixation of his seniority he be considered for promotion as A.S I with effect from the date when his next junior was promoted as such and his seniority in that rank be fixed accordingly. It was further directed that as he had passed the upper school training course he be. considered for promotion to the rank of S.I from the date his next junior was promoted. It is stated at the bar that an appeal against, that judgment was dismissed in limine. As noticed earlier the respondents in this case have chosen not to file any counter-affidavit. They have not placed on record any material to controvert the averments in the writ petition that the petitioner has throughout carried out his duties to the entire satisfaction of the police authorities. In view of my finding that his seniority as Head Constable is to be re-fixed with effect from 1st January, 1961, and in view of his fact that his juniors were promoted as A.S.I prior to his promotion in that rank. 1 direct that his seniority be re-fixed as A.S.I from the date his next junior was promoted as such. And in view of the provisions of rule 13, 18 of the P.P Rules he is to be confirmed as A.S.I with effect from that date. I am directing this since on the respondent's own showing the petitioner has been an A.S.I for the last over three years and he has completed successfully the probation period of two years. Unlike the petitioner Kartar Singh in the writ petition decided by M.L Jain, J. and the petitioners Dewan Singh and Attar Singh in C.W 1185 of 1975 decided by me on 21st September, 1984 this petitioner did not seek direction for being sent to the upper school training course, during the pendency of the present writ petition. I have no doubt that if he had sought so, the same would have been granted, as direction in his case to attend the intermediate school training course had earlier been passed. The petitioner, therefore, is entitled to attend the upper school training course, I direct the respondents to send the petitioner to attend that course. In the event of his successful completion of that course he is to be considered for further promotion as Sub-Inspector with effect from the date his junior was so promoted. In the event of his next junior having been promoted after the promulgation of Delhi Police Act, then his case be considered in accordance with Delhi Act but in case his next junior was promoted under the P.P Rules his case be also considered in the same manner for the purpose of promotion to the rank of Sub-Inspector. I make it clear that if he is not found fit that would be the end of the matter. In case he is found fit he is to be promoted as S.I from the date his next junior was so promoted. The petition is allowed to the extent indicated above. No order as to costs.
15. Petition allowed.