V.S. Deshpande, J.
(1) The main question for consideration is whether even a temporary police officer in Delhi is governed exclusively and that too by each and everyone of the Punjab Police Rules framed under the Police Act, 1861 (hereafter called 'PPR' in short) as applied to Delhi or whether his services can be terminated under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949 (hereafter called 'CCS(TS) Rules' as being applicable to him along with only some but not all the Punjab Police Rules. The question arises as follows :-
(2) Petitioner Ram Chander was first directly appointed as Head Constable in the Delhi Police Force on July 16, 1959 as a result of competitive examination. At the next competitive examination he secured a higher place and was appointed as a temporary Assistant Sub Inspector along with others on April 20, 1960 with effect from March 31, 1960. Their letter of appointment signed by the Superintendent of Police who is their appointing authority under section 7 of the Police Act stated that 'the provisions of Ppr 12.8(1) will not apply to them and they will be just like other temporary Central Civil Servants'. Section 2 of the Police Act is as follows :- 'The entire police-establishment under a State Government shall, for the purposes 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 any police-force shall be such as may be determined by the State Government.'
(3) Under section 46 of the Police Act, a State Government had the power to make rules generally for giving effect to the provisions of the Act. The Government of Punjab framed the Punjab Police Rules in 1934 in exercise of this power. Under section 12 of the said Act the Inspector-General of Police had the power to make rules relating to the organisation, classification and distribution of the police-force. The Punjab Police Rules, 1934 in so far as they laid down the conditions of service of the members of the subordinate ranks of the police-force could be made only by the State Government under section 2 read with section 46 of the Act. On the title page of the various volumes of these Rules, however, it is stated that they were 'issued by and with the authority of the Provincial Government under section 7 and 12 of Act V of 1961'. Their authority was thus attributed to the Inspector-General of Police and other appointing author ities rather than to the State Government. Under the Government of India Act, 1935 rules for the civil services of the Central Government were made under section 241 'except as expressly provided by the Act'. By way of exception, section 243 provided that 'notwithstanding anything in the foregoing provisions of this chapter, the conditions of service of the subordinate ranks of the various police forces in India shall be such as may be determined by or under the Acts relating to those forces respectively'. The result was that the police personnel was governed exclusively by the Police Acts and the Rules made there under and the rules relating to the general civil services made under section 241 were not applicable to them. But the Government of India Act, 1935 was repealed by Article 395 of the Constitution. Article 313 of the Constitution provided as follows :- Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the cumtnecement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India service or as service or post under the Union or a State shall continue in force so far as consistent with the provisions of this Constitution.' Central Civil Services (Temporary Service) Rules, 1949 framed under section 241 of the Government of India Act, 1935 were thus continued in force by Article 313 of the Constitution. While Article 309 of the Constitution took the place of section 241 of the Government of India Act, 1935 empowering the Government to frame rules for the civil services in general, the Constitution did not contain any provision corresponding to section 243 of the Government of India Act, 1935. The question would naturally arise whether the CCS(TS) Rules which could not apply to the police personnel till the commencement of the Constitution in view of section 243 of the Government of India Act, 1935 became applicable to the police personnel from and after January 26, 1950 when the Constitution came into force.
(4) By a notification dated July 6, 1950 issued under the second paragraph of section 2 of the Police Act, the CCS(TS) Rules were made applicable to the lower subordinates of the Delhi Police which included constables and head constables. Assistant Sub Inspectors and Inspectors were included in the upper subordinates to whom the said notification did not apply, i On May 3, 1963 two orders were passed against the petitioner by the Superintendent of Police censuring him for (1) submitting a report of an inquiry into a complaint from one 0m Prakash after a lapse of four months, and (2) delaying the submission of a challan for two months. This was done after an opportunity was given to the petitioner to show cause against the proposed action and after his Explanationns were considered unsatisfactory. On July 12, 1963 the following confidential report on the work of the petitioner for the period from 1-4-1962 to 31-3-1963 was submitted by the Superintendent of Police to the Deputy Inspector-General of Police who ordered that the same be communicated to the petitioner 'Class of Report Honesty Not beyond doubt Reputation for fair dealing with the public and accessibility to the public Not satisfactoiy. General power of control and organising capacity Poor Personality and Initiative Lacks Interest in Modern Methods of investigation and in modern police methods generally Lacks Preventive & Detective ability. Poor Working Experience of Criminal Law & Procedure Poor Reliability Not much General Remarks : During his posting at the P. S. his tactlessness and inaptitude have been the cause of chronic dissatisiaCtion on account of which he has been pulled up several times. For some time there appeared to be signs of improvement, but on the whole his performance remained below par.' On July 31, 1963 the service of the petitioner was terminated under rule 5 of the CCS(TS) Rules at the expiry of the period of one calendar month from the service of the notice on the petitioner. As a result of the representation made by the petitioner, the petitioner was employer as a Head Constable from September 21, 1963 and the break in his service from September 2, 1963 to September 21, 1963 was condoned.
(5) The petitioner has challenged the validity of the order terminating his service by this writ petition. His learned counsel Shri D. R. Sehgal urged the following grounds in support of the writ petition.
(1)Rule 5 of the CCS(TS) Rules did not apply to 'upper subordinates' (which included the post of Assistant sub inspector held by petitioner).
(2)The conditions of service of the petitioner were governed only by the Police Act and the Rules framed there under to the exclusion of all other rules. This position established by section 243 of the Government of India Act, 1935 has been continued by Article 313 of the Constitution.
(3)The CCS(TS) Rules are repugnant to the scheme of the Punjab Police Rules, the latter being special rules exclude the applicability of the former which are general rules.
(4)The exclusion of the application of Ppr 12.8(1) and the treatment of the petitioner as a temporary Government servant in his letter of appointment was by the Superintendent of Police who had no jurisdiction to do so.
(5)The order of termination followed two punishments of censure and an adverse confidential report. The order was followed by another adverse confidential report. The termination, thereforee, amounted to a punishment. As Article 311(2) was not complied with, the said order is void. Under Ppr 13.17(2) the submission of two successive 'C' reports had to be followed by a departmental inquiry. It is because the department wanted to avoid the inquiry in which the petitioner could have vindicated himself that it terminated the petitioner's service. The termination was, thereforee, a mere cloak to hide the punishment meted out to the petitioner thereby.
(6)After the termination, the petitioner was permitted lo resume duty as Head Constable. This amounted to reduction in rank contrary to the provision in Article 311(2) of the Constitution.
(6) The writ petition was opposed by the Delhi Administration on the ground that 40 temporary posts of Assistant Sub Inspectors were created in 1959 and the petitioner was appointed to one such post. This was not contrary either to the Police Act or the Rules framed there under. As they did not specifically provide for the termination of the service of a temporary police officer, rule 5 of CCS(TS) Rules became applicable to such a termination. On the repeal of section 243 of the Government of India Act, 1935 which excluded the police personnel from the ambit of the rules framed under section 241 of the Government of India Act and which (but for its repeal) could have excluded the rules framed under Article 309 of the Constitution, the rules framed under section 241 of the Government of India Act or its successor Article 309 of the Constitution became applicable to the police personnel in the same way as they were applicable to other civil servants quite irrespective of the notification dated July 6, 1950 referred to by the petitioner. The termination of the petitioner was not contrary to the Police Act or the Rules framed there under and was valid under rule 5 of the CCS(TS) Rules. In the light of the facts and the provisions of law referred to above, the question posed at the outset may now be considered as analysed in the contentions of the petitioner Serialtim.
(7) Contention NO. 1 :- In 1861 when the Police Act was enacted, the police officers like any servants of the Crown in England held their office during the pleasure of the Government. No fetters were laid on the pleasure of the Government to terminate the service of an employee. The word 'dismiss' as used, for instance, in section 7 of the Police Act meant generally the termination of the service of an employee. The technical meaning of termination by way of punishment came to be attached to it later when service rules came to be framed from 1902 onwards. In the absence of other service rules, the Police Act and the Rules framed there under alone applied to the police personnel. Adaptations were made in the Act, e.g., in section 7 by orders after the Government of India Act, 1935 was enacted and later on the commencement of the Constitution to bring the Act in conformity first with the Government of India Act, 1935 and then with the Constitution. Under the Government of India Act, 1935, the power of the Government to prescribe the conditions of service of Government servants by rules was divided into two separate compartments. Under section 241 'except as expressly provided by the Act' rules could be made by the Government regarding the conditions of service of pers ons holding any civil posts under the Crown in India. Under section 243, 'notwithstanding anything in the foregoing provisions of this chapter (Chapter Ii relating to Civil Services), the conditions of service of the subordinate ranks of the various police forces in India shall be such as may be determined by or under the Acts relating to those forces', that is to say, inter aha, by the Police Act, 1861 and the Rules made there under. This was why the rules made under section 241 did not apply to the subordinate police officers who were to be governed by the Police Act and the Rules made there under, This separation between the general civil services and the subordinate police personnel was abandoned in the Constitution. Section 241 of the Government of India Act was succeeded by Article 309 of the Constitution empowering the President or the Governor as the case may be, to make rules for the persons serving under the Union or the State generally. The Government of India Act, 1935 was repealed by Article 395 of the Constitution which did not contain any provision corresponding to section 243 of the said Act. Article 313 of the Constitution simply continued the laws in force immediately before the commencement of the Constitution and applicable to any public service so far as they were consistent with the provisions of the Constitution. These 'laws' included statutes as well as statutory rules. Article 313, thereforee, applied the principle of section 24 of the General Clauses Act, i.e., further continuation, notwithstanding the repeal of the Government of India Act and certain other enactments by the Constitution. This does not support the contention of the petitioner that either section 243 of the Government of India Act or the principle thereof continued to apply after the commencement of the Constitution. On the contrary, the repeal of section 243 removed the bar which prevented the rules made under section 241 from becoming applicable to the subordinate police officers. thereforee, the rules made under section 241 became applicable to the subordinatepolice officers also as such application was no longer excluded by section 243 which stood repealed on January 26, 1950. Of course, the rules framed under section 241 of the Government of India Act as well as under Article 309 of the Constitution were and are themselves subject to statutes made by the Legislature to regulate the conditions of service of persons serving under the Government in cluding the subordinate police officers. From January 25, 1950, thereforee, the subordinate police officers came to be governed primarily by the Police Act and the Rules made there under and secondarily by the rules made under section 241 of the Government of India Act and Article 309 of the Constitution. The Police Act and the Rules were a special law existing prior to the rules made under section 241 of the Government of India Act and under Article 309 of the Constitution which were of general application. In the case of repugnancy between the pre-existing special Act and the Rules and the subsequently made general rules, the former would prevail over the latter. The Delhi Administration might have been of the view that the CCS(TS) Rules did not apply to the subordinate police officers even after the commencement of the Constitution. They purported to apply them to the lower subordinates by the notification dated July 6, 1950. But according to the legal position stated above, such a notification was not called tor.
(8) In Dharam Dass Sonpar v. Union of India, (R.S.A. 70-D of 1965 decided on February 18, 1970) (1) the question for determination before the Division Bench was whether the services of the appellant could be terminated by the respondents under rule 5 of the CCS(TS) Rules. His appointment order did not state that he was being appointed temporarily. Further, it was shown that appointmeiits of other persons were made specifically either temporarily or on probation. On these facts it was held that the appellant was appointed permanently. Further, it was held that the notification of July 6, 1950 issued by the Chief Commissioner, Delhi applied the CCS(TS) Panics only to the lower subordinates of the Delhi Police Force. The appellant was an. upper subordinate and the implication is thet the C CCS(TS) RuL's aid not apply to him. The termination of his anpointmentt under rule 5 of the CCS(TS) Rules was. thereforee, held to be illegal.
(9) With respect, the question whether the appellant in the abovementioned case was appointed permanently and not temporarrly was on' of fact and was decided in favor of the appellant therein. That tinding was sufficient for the disposal of the writ petition. The additional conclusion that the application of CCS(TS) Rules only to the lower subordinates implied that the said Rules did not apply to the upper subordinates appears to have been based on the assumption that but for the said notification the CCS(TS) Rules would not have applied even to the lower subordinates in the police force. With respect, the attention of their Lordships was not invited to the repeal of section 243 of the Government of India Act. Had that been done, their Lordships would have considered the question whether because of the repeal of section 243 and not because of the issue of the said notification the CCS(TS) Rules became applicable to the temporary subordinate police officers. In that event, the permanency of the appellant found by their Lordships would have been sufficient for the disposal of the case before them and the additional reason regarding the non-applicability of the CCS(TS) Rules would have been unnecessary. If at all the CCS(TS) Rules did not apply to the appellant in that case because he was not a temporary employee. The said decision is, thereforee, distinguishable on facts from our case and the support sought from it by Shri Sehgal for the petitioner in the present case is not justified in view of our finding that the petitioner was appointed temporarily and not permanently as an upper subordinate.
(10) The Police Act applies to all the police personnel excepting in so far as section 7 thereof is subject to such rules as the State Government may make under the Act. The rules made under section 241 of the Government of India Act, 1935 and Article 309 of the Constitution cannot exclude its operation. But as between the Rules framed under the Police Act and the rules framed under Article 309, if both of them equally apply to a particular police officer but are inconsistent with each other, then the Police Rules will prevail being a special law as against the general rules. If, however, the general rule applies more appropriately to a police officer and is not inconsistent with any other Police Rule or there is no Police Rule which is specifically applicable, then the general rule would apply simply because no appropriate Police Rule is applicable.
(11) Rule 5 of the CCS(TS) Rules provides for the termination of the service of a temporary Government servant. There is a difference between a probationer and a temporary employee. According to Supplementary Rule 2(15) 'probationer means a Government servant employed on probation in or against a substantive vacancy in the cadre of a department'. 'Temporary service' as defined in rule 2(d) of the CCS(TS) Rules means officiating and substantive service in a temporary post and officiating service in a permanent post under the Government of India. It does not, thereforee, include employment on probation in or against a substantive vacancy which is the earmark of probation. The general rule contained in Ppr 12.2(3) is that all appointments of enrolled police officers are on probation. There would be a presumption, thereforee, that a police officer is appointed on probation. This presumption is, however, rebuttable. In the present case, 40 temporary posts of Assistant Sub-Inspectors were created and the petitioner was appointed to one of them. He was not. thereforee, appointed on probation but only as a temporary Assistant Sub-Inspector. Shri Sehgal at one stage contended that the Police Act and the Rules framed there under do not contemplate but rather repel the idea of any police officer being appointed temporarily as distinquished from being on probation. Such a contention is, however, not sustainable. Under section 2 of the Police Act, the entire police establishment under a State Government is to be deemed to be one police-force and shall be formally enrolled. Under section 8 a certificate is to be given to each such enrolled officer and thereupon the officer will be yested with the powers, functions and privileges of a police officer. Such a certificate has to be surrendered when he ceases to be such a police officer. These provisions do not, however, either expressly or by necessary implication contemplate that every police officer is deemed to be appointed permanantly and cannot be appointed temporarily. On the other hand, under section 2 of the Act, the police establishment 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'. The number of officers and men and the manner of the constitution of the establishment is, thereforee, entirely in the discretion of the State Government. There is no reason why the State Government may not decide that a part of the police establishment shall be temporary while the. other part shall be permanent. Further, such constitution has to be ordered by the State Government. That is to say, the decision to constitute permanent or temporary posts may be taken by the Stale Government by orders and need not be taken by the making of rules. Orders may comprise administrative or statutory orders as pointed out by a Division Bench of this Court in Ratnakar Vishwanath Joshi v. Life Insurance Corporation of India & Others, (Civil Writ 349 of 1972 decided on July 26, 1974, (2). The order of the Delhi Administration that 40 temporary posts of Assistant Sub Inspectors be created had thus the authority of law and perhaps the force of law according to the criteria laid down in Ratnakar Vishwanath Joshi's(2) case. Shri Harish Chandra, learned counsel for the respondents, made an exhaustive reference to the Punjab Police Rules and pointed out that reference to temporary posts were made therein at least in three places, namely, in Ppr 10.86, 8.4(e) and 10.78(1). It is thus clear that even the Punjab Police Rules contemplate the existence of temporary posts of police officers. A Full Bench of the Allahabad High Court in Nanak Chand v. State of U.P., 1971 S.L.R. 661 has held that section 2 of the Police Act is wide enough to permit the creation of temporary posts in the police-force and making appointments thereto. The creation of 40 temporary posts of Assistant Sub Inspectors by the Delhi Administration was, thereforee, in accordance with the Police Act and the Rules framed there under.
(12) This finding has a decisive effect on the result of this case. Ppr 12.2(3) shows that the Punjab Police Rules apply to those appointments of police officers which are on probation unless the contrary is stated in a particular rule. As there is no specific provision either in the Police Act or the Rules made there under dealing with the termination of the service of a temporary police officer, the inevitable conclusion is that such termination has to be governed after the commencement of the Constitution by rule 5 of the CCS(TS) Rules. This conclusion does not mean that in many other respects a temporary police officer would not still be governed by the Punjab Police Rules which being a special law may apply in preference to other service rules which are of a general nature.
(13) Contention NO. 2 :- Under Ppr 12.8(1) a directly appointed Assistant Sub Inspector (as the petitioner was) would be considered to be on probation for three years and was liable to be discharged at any time during or on the expiry of the period of probation. If this rule is to mean that no temporary appointment of an Assistant Sub Inspector could be made at all, then the appointment of the petitioner was void because it was illegal as being contrary to this rule and no right can accrue to the petitioner by such appointment. But what the petitioner contends is that his appointment should be construed to be made on probation even though the appointment letter says that it was temporary. This contention may be considered from two points of view. On the one hand, if the Police Act and the Rules made there under prohibited the making of a temporary appointment and the CCS(TS) Rules had not been applicable to the termination of such an appointment, then the only way to appoint a police officer would have been to appoint him on probation in a substantive vacancy. If that had been the inveriable rule, a contract between the employer and the employee that the benefit of Ppr 12.8(1) would not be available to the petitioner could havi; bee'. attached as being against public policy (Faqir Chand v. Ram Ratten Bhanot, : 3SCR454 , (4) and Murlidhar Aggarwal v. State of LJ..P., 1974 2 L..C.C. 472. But we have seen above that the Police Act and the Rules permit the making of a temporary appointment and since they are silent as to the termination oi such an appointment, the CCS(TS) Rules apply to such termination. Even if the appointment is viewed as a contract, such a contract is not contrary to any law and is valid (Ghatgo and Patil Concern's Employees' Union v. Ghatgo and Patil (Transports) Pvt. Ltd., : (1968)ILLJ566SC , (6). On the other hand, quite irrespective of the contract for the exclusion of the application of Ppr 12.8(1) the termination of the appointment of the petitioner is governed by rule 5 of the CCS(TS) Rules because the Police Act and the Rules are silent about such termination. thereforee, the recital in the appointment letter that the petitioner being a temporary appointee was not entitled to the benefit of Ppr 12.8(1) and that he was to be treated like any other temporary Government servant was only a correct statement of law. No fault can be found with it. A temporary police officer is governed only regarding the termination of his service by rule 5 of the CCS(TS) Rules and theprovisions in the Punjab Police Rules regarding probation do not apply to him. But in many other respects there is no other law except the Punjab Police Rules and the Police Act which would govern a temporary police officer. For instance, he would be trained, would be given a certificate of enrolment and would perform the duties of a police officer there under. This does not mean that he would necessarily become a. permanent police officer. His temporary status is quite compatible with his being governed by Punjab Police Rules in most respects but being governed by CCS(TS) Rules regarding the termination of his service. It was then contended by. Shri Sehgal that rule 5 of CCS(TS) Rules is repugnant to the Punjab Police Rules and Is, thereforee, excluded by them. Under Ppr 12.8(1) a probationary Assistant Sub Inspector can be discharged only by the Deputy Inspector-General of Police though his appointing authority is only the Superintendent of Police. On the other hand, under rule 5 of CCS(TS) Rules, the appointing authority alone can terminate the service of a temporary Government servant. There is no inconsistency between the two inasmuch as Ppr 12.8(1) applies to a probationer and not to a temporary police officer. It was not, thereforee, necessary that the Deputy lnspcctor-general should have terminated the service of the petitoner. Another inconsistency pointed out by Shri Schgal was that every police officer appointed on probation has to sign. a. form in. which, he would agree that he would not resign for three years though the Government would be free to terminate his service before the end of three years. No such form of agreement was signed by the petitioner on his appointment as a temporary Assistant Sub Inspecctor. It was then pointed out that section 9 of the Police Act also was inconsistent with rule 5 of CCS(TS) Rules. For, under section 9 no police officer could withdraw from the duties of his office or resign his office without the permission of the District Superintendent of Police and without giving notice of two months of his intention to resign. On the contrary, under rule 5 of the CCS(TS) P(r)ules either the Government or the Government servant could terminate the contract of service by one month's notice. Here also the inconsistency is only in respect of the employee resigning the service. There is no inconsistency in respect of the employer terminating the contract of service. Section 9 does not speak about the termination of the service of a police .officer by his appointing authority. thereforee, it is not inconsistent with rule 5 of Ccs (TS) Rules which enables the appointing authority to terminate the temporary Government servant by one month's notice. It was contended by Shri Sehgal that there must be mutuality in a contract of service. If a police officer on probation is not permitted to resign before the end of three pears, the Government also should not be able to terminate the contract of service before the end of three years. But the essence of the contract of Government service is its inequality. The police officer is not allowed to resign without permission and without two months' notice because the Government spends money on his training and prepares him for performance of his duties. But no such considerations bar the Government from terminating his service by a shorter notice. It was then contended that the power to make rules and lay down the conditions of service of the petitioner was in the Government and not in the Superintendent of Police. The latter could not, thereforee, exclude the application of Ppr 12.8(1) in the letter of appointment. We have already seen that it was the decision of the Government to create temporary posts of Assistant Sulx, Inspectors and to treat the appointees like any other temporary Government servants. It was this decision of the Government which was being implemented by the Superintendent of Police who had to sign the letter of appointment of the petitioner being his appointing authority. He merely stated the decision of the Government and the legal position in the letter of appointment. He did not of his own accord put anything new in it. The Punjab Police Rules and the CCS(TS) Rules are to be read together to be applied to the petitioner. In most respects, the former would apply but those provisions of the Punjab Police Rules which make every appointee a probationer will not apply inasmuch as the petitioner is not a probationer and, thereforee, rule 5 of the CCS(TS) Rules would apply to the termination of his service. Each of these rules, thereforee, has a different sphere of applicability. They do not conflict with each other because either the one or the other is applicable in a particular respect. When one is applicable, the other is by passed and vice versa (Harishankar Bagia v. State of Madhya Pradesh, : 1954CriLJ1322 ).
(14) Contention NO. 3 :- Some of the so-called points of inconsistency between the Punjab Police Rules and the Ccs (TS) Rules pointed out by the learned councel for the petitioner are already considered above. It is needless to further enumerate other such points. An inconsistency arises when both the sets of rules equally apply to a particular situation. We have already pointed out that in respect of termination of service of a temporary police officer, neither the Police Act nor the Rules framed there under make any provision and, thereforee, only rule 5 of CCS(TS) Rules can apply. This means that those provisions of the Punjab Police Rules which relate to a probationer do not apply because the petitioner is not a probationer. It is pointless to refer to the provisions of the Punjab Police Rules applicable to the probationer and to argue that they are inconsistent with the CCS(TS) Rules which do not apply to a probationary police officer at all. The Punjab Police Rules being a special law would apply to a probationary police officer.
(15) It is next contended that under the Essential Services (Maintenance) Ordinance, 1941, the police have been declared an essential service and that under clause 5 of the said ordinance, it is an offence for a person governed by the Ordinance to abandon employment or to absent himself from work Without the previous consent of the employer. This may be so. But the Ordinance does not prohibit the employer from terminating the service of an employee who may be governed by the said Ordinance. In that respect, thereforee, there is Administration And OTHERS. no inconsistency between the Ordinance and rule 5 of the CCS(TS) Rules. We are of the view, thereforee, that the application of rule 5 of CCS(TS) Rules is not precluded by any of the provisions of the Police Act and the Rules which may be applicable to the petitioner in respects other than the termination of service.
(16) Contention NO. 4 :- We have already stated above that the Superintendent of Police being the appointing authority of the petitioner merely followed the decision of the Government that the appointment was to be temporary. This automatically meant that Ppr 12.8(1) was not to apply and the petitioner was to be treated like any other temporary Government servant.
(17) Contention NO. 5 :- As a last resort, Shri Schgal vehementally urged that the ternination of petitioner's service was by way of punishment. He prayed for an opportunity to inspect the personal file of the petitioner. As the file had been brought to the Court he was allowed to see the same. Ho discovered that a complaint against the petitioner had been made on July 11, 1963 by the Secretary of Rickshaw Pullers' Co-operative Transport Society. It was alleged therein that the petitioner disturbed the meeting of richshaw pullers by forcibly trying to remove one Ghulam Mohd. from the meeting. The petitioner was called upon to give an Explanationn. He was also called for an inquiry. The Superintendent of Police noted after the inquiry that there was some misunderstanding which was cleared and the complaint may, thereforee, be filed. The complaint was thereupon placed on the personal file of the petitioner. In view of the report of the Superintendent of Police staling that the complaint was based on some misunderstanding the more fact that the complaint was placed on the personal file of the petitioner did not in any way reflect on the conduct of the petitioner adversely. On July 12, 1963 an adverse confidential report, reproduced above, was communicated to the petitioner. In May 1963 two orders of censure had been passed against the petitioner. Shri Sehgal contends that the order of termination should be viewed in the light of these attendant circumstances and should be construed to amount to punishment.
(18) The attendant circumstances may amount either only to a motive for the termination or may become the very foundation on which the termination is based. If they are subjective or a general opinion about suitability or assessment of work, they are only a motive. They are a remote but not a direct cause of termination. If they are objective facts which could be verified and a direct cause of termination, they could be the foundation of it. If they only supply the motive then they do not vitiate the termination. But if they arc the foundation of the termination, they would be a part of the termination order which may then amount to punishment. In R. C. Roy v. Union of india, 2nd (1971) 1 Delhi 534, a Division Bench of this Court exaniined all the '.hen existing decisions of ihe Supreme Court on this question and h'd down the criteria to determine when a termination cou'd be said to be simple terinination and when it could be said to be by way of punishment. In the light decision, it may be stated that if the termination is in the counic of administrativa routine then it would be a simple termination in terms of the service contract and rule 5 of the CCS(TS) Rules, On the other hand, if some incident arising otherwise than in the course of administractive routine was viewed to operate against the employee and was the cause of the termination of his service, then such an incident should have formed a charge against the petitioner who should have had ihe opportunity of rebutting the same. If without giving such opportunity K the Governments acts on such a charge and terminates the service of the employee, then the charge would be a foundation of the termination which would then amount to a punishment. The latest pronouncement on the subject by the Supreme Court is in Samsher Singh v. State of Punjab, (Civil Appeal No. 2289 of 1970 decided on August 23, 1974) by a Bench of seven Judges. Ray, C. J., spoke for all the judges on this particular point. The authoritative and important observations of the learned Chief Justice were as follows 'No abstract proposition can be laid down that where the service of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfectory or whether he is suitable for the post. In the absence of any Rules governing a proationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an inquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection.'
(19) The application of the above observations to the facts of the present case leads to the following conclusions :-
(1)The censures administered to the petitioner in May, 1963 become a closed chapter. Inasmuch as the punishment was given to the petitioner there and then nothing more had to be done about it. The censure could not become even the motive muchless the foundation of the later termination of the petitioner's service (State of U.P. v. Sughar Singh, : (1974)ILLJ260SC (7)).
(2)In Sughar Singh's case, referred to above, the service of the employee was suddenly terminated without any other cause appearing against the employee. It was, thereforee, held that such a termination amounted to double punishment and was also discriminatory as observed by the Supreme Court in paragraph 19 of the report. But in our case a confidential report for the year 1962-63 went against the petitioner in the routine course of administration. Writing of confidential reports is an administrative routine. The assessment of the work of an employee has to be made at the end of each year. If as a result of such assessment his services are simply terminated then such termination must be regarded as being in the course of routine adrministration as distinguished from some incident outside the routine of administration which could be the cause for the termination. As held by the Supreme Court in Champaklal v. Union of India, : (1964)ILLJ752SC , (8) Government does not terminate the service of a particular employee without any rhyme or reason. When his work has not been as good as that of others, his service can be ended as was done in Champaklal's (8) case. Such an employee cannot A complain of discrimination inasmuch as there is a reasonable classi fication between an unsuitable employee and those who are comparatively more suitable than him.
(20) (3) Moreover the remarks against the petitioner in the confi dential report are only subjective opinions. They could not form the basis of charges into which an inquiry could be held. They were not allegations of misconduct but only of unsuitability (R. L. Butail v. Union of India, : (1970)IILLJ514SC ). Even if it is assumed for the sake of argument that an inquiry into them could be held, according to the decision of the seven Judges' Bench of the Supreme Court referred to above, the appointing authority had an option to choose between two courses of action. It could have chosen to hold a departmental inquiry against a petitioner or it could have decided simply to terminate his service to give him a chance to make good in other walks of life without a stigma. If the authority chooses the latter alternative the petitioner cannot turn round and assert that he had a right to compel the authority to hold a departmental inquiry against him.
(21) Learned counsel for the petitioner then urged that the second con- fidential report was given against the petitioner in November 1963. He said that under the Punjab Police Rules if two consecutive 'C' reports are received against the police officer, then ordinarily an inquiry held into the charges as could be framed on the contents of the confidential reports. He contended that it was incumbent on the Government to hold such an inquiry against the petitioner. This contention also has no force. Firstly, at the time of the termination of the petitioner's service only one confidential report was available. Secondly, it is only the normal rule that after two 'C' report an inquiry should be held. This is subject to the exception that the contents of the adverse reports may be such that no charges could be framed out of them. In that event, no inquiry could be held. As stated above, the remarks in the confidential reports against the petitioner were only expressions of opinion. Properly speaking they could not form materials for the framing of charges against him. Lastly, the question of framing charges did not arise simply because the Government had the option to simply terminate the petitioner's service. Contention NO. 6 :-
(22) Reduction in rank occurs when an employee having a right to hold a post is reduced to a lower rank without his consent. No such question arose in the present case. After the petitioner's service came to an end as an Assistant Sub Inspector, he made a representation and he was re-employed as a head constable at his own request and with his consent. This was not connected in any way with the termination of his service as an Assistant Sub inspector. The break in service was also condoned as a favor to the petitioner. But this does not mean that he was reduced in rank. The question of reduction in rank also does not arise because the petitioner was a temporary Assistant Sub Inspector and had no right to hold that post. Nor was there any punishment meted out to him.
(23) All the contentions of the petitioner having failed, the writ petition is dismissed but in the circumstances without any order as to costs.