1. The petitioner was employed as ,a permanent Warden in the Service of the State. On 10th June, 1969 42 inmates of Sampurnand Shivir, which is an open Jail, were given in his charge in order to take work from them. One of the inmates, namely, Sri Barati, escaped quietly, allegedly, due to the carelessness and negligence of the petitioner. The petitioner was charge-sheeted. There were four charges against him. He denied the charges. Upon enquiry, which followed, only two of the charges were found proved against him, On consideration of the matter, the Adhikshak, Sampurnand Shivir (Superintendent of Jail) opposite party No. 2, by his order dated 29-4-1970, reinstated the petitioner with minor punishment of withholding his annual increment for two years. In the opinion held by him, that the sentence imposed upon the petitioner was not adequate, Karagar Mahanirichhak (Inspector General of Prisons, U. P., Lucknow), opposite party No. 3, acting under Rule 1135 of the Jail Manual, served a notice dated 12-10-1970 on the petitioner to show cause why the order of the Superintendent of Jail be not superseded and he be dismissed from service. The petitioner submitted his explanation. Thereupon, the Inspector General of Prisons passed an order on 21-4-1974 removing the petitioner from service. After making an unsuccessful appeal to the State Government the petitioner filed this writ petition in which he claimed that the aforesaid orders were unjust, illegal and without jurisdiction and prayed that the same be quashed.
2. At the hearing before us, the only point urged in support of the petition by the learned counsel for the petitioner was that the order of the Inspector General of Prisons is invalid and without jurisdiction. Because, said he, Rule 1135 is ultra vires the Prisons Act, under which it was framed. The learned counsel for the opposite parties strongly refuted the suggestion and argued that the source of authority for the rule lay in Section 59(10) of the said Act. Section 59(10) authorises the State Government to make rules consistent with the Act:--
'For the government of Prisons and for the appointment of all Officers, appointed under the Act.'
3. The contention of the learned counsel for the petitioner was that the appointment signifies posting to an office and nothing more, and as such, Rule 1135, which is actually relatable to the conditions of service, falls outside the rule-making power of the Government under this Clause. In reply it was contended by the learned counsel for the opposite parties that the power to appoint includes the power of dismissal and, so, the Government was amply empowered under this Clause to make the rule in question which is relatable to the power of dismissal.
4. Rule 1135 reads thus:--'Power of revision. The Governor and the Inspector General reserve to themselves the power of calling for records of any case and revising any order whether appeal against such order has been submitted or and whether the period of limitation has expired or not but net ordinarily after six months of such order:
Provided that where it is proposed to enhance penalty imposed by any such order, the Government servant concerned shall be given opportunity showing cause against the proposed enhancement.'
5. This rule appears in Chapter XII of the Jail Manual in juxtaposition to the rules providing for disciplinary matters relating to the Jail Officers and provides for the power of the State Government and the Inspector General of Prisons to revise the orders of the sub-ordinate authorities in those matters. Clearly, it regulates conditions of service of Jail Officers in matters of discipline. There can be hardly any doubt that such matters do not fall within the purview of Clause 10 of Section 59. The power of the State Government to make rules under that Clause is ancillary to Section 6 of the Prisons Act which says:--
'Officers of Prisons. For every prison there shall be a Superintendent, Medical Officer (who may also be the Superintendent), a Medical Subordinate, a Jailor and such, other officers as the (State Government) thinks necessary:
Provided that (State Government of Bombay) may. ...declare by order in writing that in any prison specified in the order the office of Jailor shall be held by the person appointed to be Superintendent'.
6. So viewed, Clause 10 of Section 59 empowers the Government to makerules prescribing the staff and establishment that each Jail shall have for its control and management in addition to the officers commanded by the Act under Section 6 and the mode and the manner in which such officers and establishment shall be recruited. In the Clause providing that the Government shall make rules for the government of the prisons' it signifies that the Government shall, by rules, prescribe what staff and establishment shall each Jail have for its control and management and how it shall be recruited. This construction is also supported by the connecting words, 'and for the appointment of all the Officers appointed under the Act'. In this view, Rule 1135 cannot be justified under Section 59(10) of the Act. The argument of the learned counsel for the opposite parties to the contrary must, therefore, be rejected. In fact the argument is misconceived. The power to appoint may include the power of dismissal, as it really does. But what follows is not that power, to make rules for appointment includes the power to make rules for dismissal. Such an inference is neither permissible under Section 16 of the General Clauses Act on which reliance was placed by the learned counsel for the opposite parties, nor otherwise. In none of the authorities cited by him has it been held nor in fact could it be held that the power to make rules for appointment includes power to make rules for dismissal.
7. But the matter does not end here. Section 59(28) gives power to the State Government to make rules 'generally for carrying into effect the purposes of the Act,'
8. By its preamble, the Act seeks to provide rules for the regulation of prisons. In fact the Legislature has formulated the essential rules and fashioned them into the Act. In order to secure the implementation of those rules an administrative set-up has been planned and produced by the Act under Section 6 and care has been taken under Sections 8 to 23 thereof to define and delineate what the duties and functions of various officers in the hierarchy of such set-up shall be. Section 8 deals with the duties of the officers like the petitioner and says:--
'Control and duties of officers of prisons. All officers of a prison shall obey the directions of the Superintendent; all officers subordinate to the Jailor shall perform such duties as may be imposed on them by the Jailor with the sanctionof the Superintendent or be prescribed by rules under Section 59.'
9. Thus the proper performance of their functions and duties by the Officers of, the prisons can be appropriately regarded as one of the purposes of the Act In that view the rules regulating disciplinary matters in relation to the Jail Officers including the impugned Rule 1135 appearing in Chapter XLI of the Jail Manual must be held to have been made by the State Government in exercise of the powers under Section 59(28). So viewed, Rule 1135 is intra vires and we hold so. That being so the order of the Inspector General of Prisons removing the petitioner from service cannot be said to be invalid and without jurisdiction.
10. In the result, this writ petition must fail and is hereby dismissed but without any order as to costs.