Mehal Singh vs The State of Punjab

B.R. Tuli, J.—The Petitioner was enrolled as a Constable at Ferozepur on August 1, 1964, and was given training at the Police Recruits Training Centre, Jahankhelan, district Hoshiarpur, where he generally did well. He passed his Lower School Course in the term ending March 31, 1968, from the Police Training School, Philaur. On March 6, 1939, the Punjab Public Service Commission advertised for recruitment of a number of Assistant Sub-Inspectors of Police. As the Petitioner fulfilled all the qualifications laid down in the advertisment, he submitted his application to the said Commission through proper channel and sent an advance copy of his application to the Commission as well. He was called for interview by the Commission by letter dated June 17, 1969, in response to which he appeared before the Commission on June 27, 1969. On March 29, 1963, he had been informed by the Head Clerk of the office of the Senior Superintendent of Police, Ferozepur, that his application could not be forwarded to the Punjab Public Service Commission according to the instructions issued by the Inspector General of Police by his memorandum No 7006-7041/B, dated June 17, 1957, as the Petitioner was already in service of the Police Department as a lower subordinate and could not apply for direct appointment to the Commission. On July 3, 1969, an order was passed by the Senior Superintendent of Police, Ferozepur. placing the Petitioner under suspension in compliance with the radio message received from the Inspector General of Police, Punjab, on July 2, 1969. A few days later, he was served with a charge-sheet along with a summary of allegations informing him that he had applied to the Punjab Public Service Commission for the post of an Assistant Sub-Inspector in spite of the orders of the Senior Superintendent of Police, which were in accordance with the instructions issued by the Inspector General of Police vide his letter No. 7006-7041/B, dated June 17, 1957, according to which a lower subordinate was not considered eligible for direct recruitment to the post of an Assistant Sub-Inspector. It was alleged that the Petitioner had violated the orders of the Senior Superintendent of Police and as such was guilty of indiscipline. This information was also sent to the Public Service Commission with the result that the Petitioner was not selected. The Petitioner then filed the present writ petition in this Court challenging the order of suspension and the initiation of the departmental enquiry against him. The return to the writ petition has been filed by the Senior Superintendent of Police, Ferozepur, who has asserted that the instructions issued by the Inspector General of Police were legal and binding on the Petitioner, and, inasmuch as he had acted contrary to those instructions, he was rightly placed under suspension pending the departmental enquiry against him. The Petitioner had also alleged in the petition that the said instructions of the Inspector General of Police issued in 1957 were superseded by the instructions issued vide memorandum No. 11925-95-B, dated May 10, 1966, according to which the Police officials were permitted to compete for higher posts reserved for direct recruitment in Police Department subject to the condition that no official would be given more than one chance to apply for a post outside or inside the department. In a supplementary affidavit filed by the Senior Superintendent of Police, it has been stated that the Petitioner was afforded a chance to compete for direct appointment as an Assistant Sub-Inspector of Police in 1967 and, therefore, he could not avail himself of another chance.

The learned Counsel for the Petitioner has vehemently argued that the Inspector General of Police had no authority to issue any instructions whereby the lower subordinates of the Police Department were debarred from competing for direct recruitment as Assistant Sub-Inspectors of Police when the Police Rules did not prohibit the same. Reference is invited to Police Rules 12.3, 12.5 and 12 6, which read as under:

12.3. Except as provided in Rules 12.1 and 12.4 direct appointments shall not be made except in the rank of inspector, prosecuting sub-inspector and assistant sub-inspector. Such appointments in the rank of inspector and assistant sub-inspector may be made up to a maximum of ten per cent and twenty five per cent of vacancies, respectively.

12.5. Applications for direct appointment in the rank of inspector, sergeant and assistant sub-inspector will be received and acknowledged as submitted, but no correspondence will be undertaken with applicants, nor will they be told whether they have been accepted as candidates or not. When appointments are to be made, pending applications will be considered and those applicants whom it is desired to call before a selection board will be informed at least a month before the assembling of the board.

12.6. (1) Applications for direct appointment in the rank of inspector or assistant sub-inspector shall, at the discretion of the Inspector General and range Deputy Inspector General, respectively, be referred to the Superintendent of the applicant''s home district fir report in Form 12.6(1)

(2) No applicant shall be accepted as a candidate for direct appointment as inspector or assistant sub-inspector who has not been certified as physically fit for service by a Civil Surgeon and who does not possess the following qualifications:

(a) Good moral character.

(b) Good physique and active habits.

(c) He must be between 18 and 25 years of age.

(d) He, must, if a candidate for an inspectorship, ordinarily be a graduate of a University, or, if a candidate for assistant sub-inspectorship have passed the first examination in Arts, or its equivalent in other faculties, or he must hold the Diploma of the Aitchison Chiefs'' College ; provided that the Inspector General has power, in special cases, to dispense with this educational qualification.

It is admitted on behalf of the Respondents by the learned Advocate General that there is no rule prohibiting the lower subordinates of the Police Department from competing for direct appointment as Assistant Sub Inspectors of Police. It is however, urged that Inspector General of Police was competent to issue executive instructions to this effect, particularly because the Rules were silent on the point. For this submission reliance is placed on a judgment of their Lordships of the Supreme Court in Sant Ram Sharma Vs. State of Rajasthan and Another, . wherein the following observations occur:

We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.

In my opinion, the learned Advocate General cannot derive any help from these observations. The service rules can be framed by the Governor of the State in exercise of the powers under Article 309 of the Constitution. Admittedly, in the present case the impugned instructions were issued by the Inspector General of Police and not by the State Government or the Governor of Punjab. It has not been shown that the Inspector General of Police has been authorised to change, or add to, the service conditions of the lower subordinates of the Police Department under any section of the Police Act or any rule framed under the Act. In the case before their Lordships, the executive instructions were issued by the State Government, which were held to be valid. The impugned instructions in the present case impose a prohibition on the lower subordinates of the Police Department, which is not contained in the Police Rules and, therefore, these instructions run counter to those Police Rules. It cannot be said that the Police Rules are silent on the point and, therefore, executive instructions could be issues. The Police Rules, set out above give a clear right to every person eligible, whether he is in service or not, to apply for direct recruitment as Assistant Sub Inspector of Police and, therefore, the instructions relied upon by the Respondent cannot be held to be valid.

I am further of the opinion that the restriction imposed on the Petitioner and other lower subordinates by the impugned instructions issued by the Inspector General of Police is violative of the fundamental right guaranteed under Article 16 of the Constitution to the Petitioner and other lower subordinates of the Police Department by prohibiting them to compete for direct appointment. This Article does not empower the State Government even to impose reasonable restrictions on the exercise of this fundamental right, although under Article 19 of the Constitution such restrictions can be imposed. If the service rules, duly framed, contain such a restriction, it may be possible to argue that the persons accepting service on those conditions should abide by the same and if they act contrary thereto, they violate the discipline of the Force, but, in the absence of a duly promulgated rule of service under Article 309 of the Constitution it is not possible for the Inspector General of Police to impose any restriction on the right of lower subordinates of the Police Department to apply for direct recruitment to the posts to which they are entitled.

For the reasons given above, this petition is accepted with costs and the order of suspension, as also the order initiating departmental enquiry against the Petitioner, are hereby quashed Counsel''s fee. Rs. 10 /-.