Devender Kumar & Ors. vs Union Territory of Chandigarh & Ors.

Harsimran Singh Sethi, J. (Oral)

The present petition(s) have been filed challenging the order dated 02.04.2026 (Annexure P-1), passed by the learned Central Administrative Tribunal, Chandigarh Bench (hereinafter referred to as ‘the Tribunal’) in Original Application No.568 of 2023, by which, the challenge raised to the notification dated 18.06.2021, by which, Punjab Police (Chandigarh Amendment) Rules, 2021 were enacted, and also the subsequent circulars dated 31.05.2023 (Annexure A-32) and 15.06.2023 (Annexure A-33) vide which the Constables including the applicants have been directed to submit willingness if they are interested in B-1 Test (under 25% quota) by 15.06.2023 later extended to 22.06.2023, has been upheld.

Certain facts needs to be enumerated for the purpose of the present order to highlight as to what was the issue raised and the basis of the same before the Tribunal.

The Police Act 1861 (hereinafter referred to as ‘1861 Act’) was enacted and as per Section 46 of 1861 Act, the said Act was not applicable on its own but was only to take effect in case, the same is adopted by the State Government by an order to be published in the official Gazette to extend the whole or any part of the Act to any presidency, State or place. Further, in case the Police Act 1861 is adopted, the same can be made applicable upon other parts also or could be, on the specified parts of the State also.

It is a conceded position that the 1861 Act was adopted by the State of Punjab vide its notification dated 15.05.1861 and was made applicable upon whole of its territory. Under the 1861 Act, the State of Punjab had framed Punjab Police Rules, 1934 (hereinafter referred to as ‘1934 Rules’). The 1861 Act and 1934 Rules governed the Police Department till, the State of Punjab framed The Punjab Police Act, 2007 (hereinafter referred to as ‘2007 Act’) and was made operative with effect from 05.02.2008, however, the jurisdiction still remained with the State of Punjab to frame rules for carrying out the purposes of the said Act under Section 80 of the 2007 Act but the State of Punjab decided that till such rules are framed, the Punjab Police Rules, 1934 will continue governing the issue.

Further, Section 84 of the 2007 Act stated that keeping in view the power given under Section 46 of the Police Act 1861, which was exercised to adopt 1861 Act, such adoption of the 1861 Act be treated as withdrawn meaning thereby that instead of Police Act 1861, the 2007 Act was made applicable with operation of Punjab Police Rules 1934 w.e.f. 05.02.2008 i.e. the date of commencement of the 2007 Act.

The change of the Police Act by the State of Punjab influenced Chandigarh Administration to adopt the same as, earlier 1861 Act and Punjab Police Rules, 1934 were being followed even qua the employees of the Police Department with U.T. Chandigarh. However, vide notification dated 29.03.2010 issued by the Ministry of Home Affairs, Government of India, The Punjab Police Act 2007 was adopted by the Chandigarh Administration and as per the said notification, wherever the words “State Government”, “Government” and the “Government of the State of Punjab”, occur, the words “Administrator”, “Union Territory of Chandigarh”, shall be substituted.

After the said notification dated 29.03.2010, the 2007 Police Act became applicable upon the Chandigarh Administration with the modification mentioned in the notification dated 29.03.2010 and once the same was adopted, as Section 84 of the 2007 Act, the 1861 Act stood withdrawn qua the applicability of the same to U.T. Chandigarh. As even in the State of Punjab, the 1934 Rules were operating even with the 2007 Act, the same were also made operative till, any decision is taken to frame the rules under 2007 Act as per the procedure prescribed under Section 80 (ii) of 2007 Act, as adopted by the Chandigarh Administration.

It may be noticed that vide notification dated 18.06.2021 (Annexure P-3), the Rule 13.7 of the Punjab Police Rules 1934 was amended by the Amendment known as Punjab Police (Chandigarh Amendment) Rules 2021 whereby the Rule 13.7 was amended to declare that 70% of the Constables will be considered for further promotion on the basis of seniority-cum-merit and 25% will be selected through a test titled ‘B-1 Test’ and the remaining 5% will be considered for promotion from the outstanding sports persons according to their date of appointment as Constable.

The said notification dated 18.06.2021 was impugned by the petitioners herein before the Central Administrative Tribunal on the ground that the said amendment has been done by seeking power under Section 46 of the Police Act 1861, which Act no longer exists on the said date and therefore, any amendment done by exercising power under the 1861 Act is incorrect as, the amendment to the rules i.e. 1934 Rules which was adopted by the Chandigarh Administration, could be made as per the procedure provided under Section 80 (ii) of 2007 Act, as adopted by the Chandigarh Administration. The said Original Application has been considered by the Tribunal and the prayer raised was rejected by holding that the notification dated 18.06.2021 is valid and therefore, the bifurcation of quota for promotion from the post of Constables by way of seniority and by way of test is valid. The said judgment of the Tribunal is under challenge in the present petition.

Learned Senior counsel appearing on behalf of the petitioners argue that the issue raised before the Tribunal has not been looked into with correct perspective to hold whether, power under a withdrawn Act of 1861 can be exercised even after 29.03.2010 when the 2007 Act was operative within the Chandigarh Administration and such power exercised under a withdrawn Act so as to amend Punjab Police Rules, 1934 on 18.06.2021 can be treated as a valid source of power to amend Punjab Police Rules 1934 or not.

Learned Senior counsels for the petitioners jointly submit that once the Punjab Police Act 2007 was adopted in toto by the Chandigarh Administration in the year 2010. Section 84 of the said Act clearly withdraws the applicability of 1861 Act to the territory of the Chandigarh Administration, hence, any power exercised under Section 46 of the 1861 Act which has been used to amend the Punjab Police Rules 1934 while issuing notification dated 18.06.2021, is incorrect. The argument raised on behalf of the petitioners is that after the 2007 Act was adopted by the Chandigarh Administration vide notification dated 29.03.2010, only the procedure envisaged under Section 80 (ii) could have been adopted to amend the 1934 Rules, which was not done while issuing the notification dated 18.06.2021, therefore, the said notification is liable to be set aside.

Learned Senior counsel for the petitioners further submits that the 2007 Act has been extended to the Chandigarh Administration, by the Ministry of Home Affairs, Government of India, therefore any Amendment to the 1934 Rules can only be done by the Government of India, the Chandigarh Administration on its own cannot amend the Punjab Police Rules 1934 so as to amend the criteria for promotion from the post of Constable to that of Head Constable as 70 per cent by way of seniority-cum-merit and 25 per cent by way of B-1 test.

On the other hand, learned Senior Standing Counsel for the respondent-UT Chandigarh submits that Section 46 of the Punjab Police Act 1861 will remain a source of amendment as, only the extension of the said Act was restricted by Section 84 of the Punjab Police Act 2007 which has been adopted by the Chandigarh Administration on 29.03.2010. Learned Senior counsel for the respondent-U.T. Chandigarh further submits that the powers under the Punjab Re-organization Act, 1966 (hereinafter referred to as ‘the 1966 Act’) will still be applicable and keeping in view the provisions of the 1966 Act, once the Police Act 1861 was applicable to the Union Territory of Chandigarh, such powers under the 1861 Act could still be exercised even after adopting the 2007 Act.

Learned Senior counsel on behalf of respondent-UT Chandigarh further submits that once the 1934 Rules operates, the same can be amended by the Chandigarh Administration, which exercise was undertaken vide notification dated 18.06.2021 hence, the same is perfectly valid, illegal and the writ petition may kindly be disposed of.

Learned Senior counsel appearing on behalf of private respondents who have also been added as a party to the present petition submits that the argument raised on behalf of Chandigarh Administration be treated as argument raised on behalf of private respondents as well for the consideration of the present petition.

Apart from the above, the learned Senior counsel for the private respondents has raised an issue that there is no locus with the petitioner to file the present writ petition, as even as of today the 25% posts which are being filled by conducting the ‘B-1’ test wherein 42 candidates have been selected, none of the petitioner comes within the zone of consideration and therefore, they cannot impugn the said amendment to the rule dated 18.06.2021 concerning promotion of Constables to the post of Head Constable as they will not be benefitted even after succeeding in the present petition.

Learned Senior counsel for the private respondents submits that even if it is assumed for the sake of the argument that wrong source of power has wrongly been utilized while issuing the notification dated 18.06.2021 still the same will not make much difference as, under Section 80 of 2007 Act, as adopted by the Chandigarh Administration, the power to amend the rule still existed with the Union of India and therefore, such amendment done is perfectly valid and legal, keeping in view the settled principles of law settled by the Hon’ble Supreme Court of India in Civil Appeal No.6460 of 1998 decided on 16.03.2004 titled as ‘N. Mani v. Sangeetha Theatre and Others’.

We have heard learned counsels for their respective parties and have gone through the record with their able assistance.

The first question which arises for the determination in the present petition is that whether the power exercised under Section 46 of the Police Act, 1861 in order to make amendment to the Punjab Police Rules 1934 on 18.06.2021 is correct or not.

20 As noticed hereinbefore, the 1861 Act is not applicable on its own unless and until adopted by a respective State/Union Territory. It is a conceded position that the said 1861 Act was adopted by the State of Punjab and thereafter, 1934 Rules were framed under the 1861 Act. The said Act continued to operate till the year 2007 when, the State of Punjab decided to frame its own Punjab Police Act 2007 vide notification dated 05.02.2008. By the said notification, the State of Punjab under Section 84 of the 2007 Act withdrew the adoption of 1861 Act so as to implement the 2007 Act. Though, under Section 80 of the 2007 Act, the Rules can be framed by the State of Punjab but as the same was to take time, the 1934 Rules though framed under the 1861 Act, were allowed to continue to operate till such Rules under the 2007 Act are successfully enacted. The relevant provisions of the 1861 Act as well as the 2007 Act reads as under:

The net result is that w.e.f. 05.02.2008 in the State of Punjab, the 2007 Act is applicable and the 1934 Rules are being operated.

The Ministry of Home Affairs, Government of India on 29.03.2010 adopted the notification dated 05.02.2008 issued by the State of Punjab vide notification dated 29.03.2010. Under Clause I of the said notification dated 29.03.2010, it was mentioned that “State Government”, “Government” and the “Government of the State of Punjab”, wherever they occur in the notification dated 05.02.2008, the words “Administrator”, “Union Territory of Chandigarh” will be substituted, which meant that the 2007 Act was made applicable to the Chandigarh Administration in toto including Section 84 of 2007 Act, according to which, the applicability of the 1861 Act, stood withdrawn.

It may be noticed in this context that the applicability of the 1861 Act within the State of Punjab stood withdrawn on 05.02.2008 when the 2007 Act was made operational by the State of Punjab but the said 1861 Act continued to operate with the Chandigarh Administration till the notification was issued by the Ministry of Home Affairs, Government of India qua the adoption of 2007 Act to the Union Territory of Chandigarh on 29.03.2010. Once, the applicability of the 1861 Act stood withdrawn even qua U.T. Chandigarh as per notification dated 29.03.2010, the said 1861 Act could not have been used for any purpose unless and until adopted again, which power existed with the Chandigarh Administration. However, it is a conceded position that starting from 29.03.2010, till the notification dated 18.06.2021 was issued, the applicability of the 1861 Act stood withdrawn. Once, the 1861 Act was not applicable as on 18.06.2021, keeping in view the notification by the U.T. Chandigarh dated 29.03.2010, no provisions of the 1861 Act could be utilized to amend the Punjab Police Rules 1934. Hence, the amendment of 2021 issued by the Chandigarh Administration on 18.06.2021 to amend Rule 13.7 of the Punjab Police Rules 1934 while exercising powers under the 1861 Act was wrongly used as the same did not exist on the day when the said amendment was brought into operation.

Further, it may be noticed that there was no power with the U.T. Chandigarh to amend the Rules i.e. 1934 Rules and the proper way of introducing an amendment was required to be followed as per the provision of Section 80 of the 2007 Act which is reproduced as below:-

Once, a proper process for amendment has been envisaged under the 2007 Act, the issuance of a mere notification by the Chandigarh Administration on 18.06.2021 was not good enough to amend the 1934 Rules. Once, a specific procedure has to be adopted for the amendment of Rules, and such procedure has not been adopted, the amendment dated 18.06.2021 cannot be allowed to operate being contrary to 2007 Act which was applicable to the Union Territory, Chandigarh since 29.03.2010.

Further, the argument which has been raised on behalf of the respondents is that adoption of incorrect provisions while issuing the notification dated 18.06.2021 cannot be a ground to set aside the amendment in case, power to amend exists, by placing reliance upon the judgment in N. Mani’s case (supra). Qua which argument it may be noticed that the power to amend the rules though exists under the 2007 Act as enumerated under Section 80 of the said Act but such power has to be utilized in a manner required. It is required to be seen in light of the power as enshrined under Section 80 of the 2007 Act to amend the 1934 Rules, whether procedure required to effect amendment has been adopted in a manner prescribed under Section 80 (ii) of 2007 Act as adopted by Chandigarh Administration on 29.03.2010. Learned Senior counsel for the respondents concede that such procedure has been followed. Learned Senior counsel has not been able to dispute that due to the said fact, the judgment in N. Mani’s case (supra) will not be coming to the rescue of the Chandigarh Administration to save notification dated 18.06.2021.

It may be observed that once the extension of the 2007 Act to the Chandigarh Administration has been done by the Ministry of Home Affairs, Government of India then, any amendment to the Act or even to the rules operative under the said Act can be done by the same authority which has adopted the Act and not by any authority subordinate to the said authority. Further, the subordinate authority in case, has been granted permission to amend the rules would be a different proposition. However, nothing has come on record that any such permission was given by the Ministry of Home Affairs, Government of India before the notification dated 18.06.2021. In the absence of any such authority given, amending the rules by the Principal Secretary, Home Department, Chandigarh Administration was beyond his jurisdiction. However, the argument of the learned Senior counsel for the respondents that the Ministry of Home Affairs, Government of India vide letter dated 08.04.2011 had advised that the Chandigarh Administration, in past, has amended the Punjab Police Rules, 1934 exercising powers under Section 80 of the Punjab Police Act, 2007 and the Administration should take appropriate action at their end and therefore, the same was taken up by the Chandigarh Administration.

On being asked to point any amendment made to the Punjab Police Rules 1934 after the issuance of the said letter dated 08.04.2011, not even a single amendment has been brought to the notice of this Court which has been undertaken by the Chandigarh Administration to Punjab Police Rules, 1934 exercising its inherent powers to do the same. Hence, once the Union of India through its Ministry of Home Affairs had adopted the 2007 Act to be made applicable to the Chandigarh Administration, any amendment can only be done either by the Union of India, Ministry of Home Affairs or with the approval of Union of India, Ministry of Home Affairs, which approval is missing in the facts and circumstances of the present case qua the notification dated 18.06.2021.

The argument raised by learned Senior counsel appearing on behalf of private respondents qua the locus of the petitioners to challenge the notification dated 18.06.2021 on the ground that even if the said notification is set aside and the posts are filled 100% by conducting the B-1 test then also, the petitioners will not get any chance for promotion as there are a large number of other candidates who are senior to them. It may be noticed that the challenge is to the notification with regard to the jurisdiction of the State/Union Territory to issue such notification amending the 1934 Rules and for the said purpose, anyone aggrieved can approach the Court. Even if the petitioners were not to get promotion in the next year or thereafter setting aside of the notification as only 42 candidates who were selected on the basis of the test will be the proposed beneficiaries and such notification will come to prejudice the petitioner. Hence, once the notification is causing prejudice to the petitioner either today or tomorrow, the same can be challenged by such aggrieved employee. Even otherwise, there is a limitation provided under Section 21 of the Administrative Tribunal Act, 1985 so as to challenge the order causing prejudice within a period of one year and in case, the same is not challenged, such challenge cannot be raised thereafter and therefore, the challenge had to be raised and the petitioners had the jurisdiction to challenge the same. Hence, the argument raised that there is no locus with the petitioners to challenge the said notification is incorrect and cannot be accepted and such argument is accordingly rejected.

Keeping in view the totality of the circumstances, the amendment dated 18.06.2021 is beyond the jurisdiction of the Secretary, Home Department, U.T. Chandigarh, as the power brought into operation to execute the said amendment to the Punjab Police Rules, 1934 was incorrect. Hence, the said notification dated 18.06.2021 is accordingly set aside.

It may be noticed that the existing rules which were required to be followed have been mentioned in the impugned notification dated 18.06.2021. It may be noticed that such rule was been relaxed while effecting promotion from the post of Constable till the time, the notification dated 18.06.2021 and promotions were being effected on the basis of seniority only.

In case, the Chandigarh Administration decides to go with promotion after undergoing test to be cleared by the Constables, it may be noticed that the 42 respondents who have already cleared the test will not be asked to undergo the same again, and their clearing of the test will be treated as final and in case, even if henceforth, any test is prescribed for promotion from the post of Constable after following due procedure, those 42 private respondents will be exempted from passing the test again. Henceforth, it will be within the jurisdiction of the Chandigarh Administration either to go with the existing Rule as mentioned in the notification dated 18.06.2021 or to relax the same.

In case, the Chandigarh Administration decides to make promotion on the basis of seniority, then, seniority of the candidates has to be regardless of the result of the test and with regard to any candidate who has already passed the test and accordingly will be entitled to promotion as per their seniority.

It will be within the jurisdiction of the Chandigarh Administration qua any promotions already made on the basis of the notification dated 18.06.2021. However, before taking any action, a due notice will be given to such persons in case, any reversion is to be undertaken or there will be a change of date of promotion. Further, in case any private respondent who have already cleared the test, becomes eligible to be promoted under the existing rule as mentioned in the notification dated 18.06.2021, then due consideration be given to them in accordance with law and, if found permissible. Chandigarh Administration would be well within its jurisdiction to grant relaxation in favour of such promotees who have already been promoted.

No other argument is raised.

The judgment is dictated in the open Court in the presence of learned Senior counsels for their respective parties.

The present writ petition(s) have been allowed in the above-said terms.

Pending application(s), if any, stands disposed of.

A photocopy of this order be placed on the connected case file.