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Union of India Vs. Yogender Pal Singh - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 157 of 1983
Judge
Reported in26(1984)DLT263
ActsDelhi Police Act, 1978 - Sections 149; Punjab Police Rules, 1934 - Rule 12.14 and 12.15
AppellantUnion of India
RespondentYogender Pal Singh
Advocates: Y.K. Sabharwal and; S.A.K. Dhar, Advs
Excerpt:
(i) delhi police act, 1978 - section 149--punjab police rules 12.15 read with rule 12.14(3) and delhi police (appointment & recruitment) rules, 1980--on the enforcement of the latter rules, the punjab police rules 12.14 and 12.15 as extended to delhi stood automatically repealed--punjab police rules so far as they are consistent with the delhi police act are deemed to have been made under the delhi police act.; (ii) words & phrases--'any such enactment shall, in so far as they are consistent with the act' is in law to be construed as 'consistent with the act' and the 'rules'.; 21 wards of delhi policemen were directed by the single judge to be appointed as constables in the delhi police force on the ground that the punjab police rules, 1934, framed under the police act, 1861,..........learned single judge directing that 21 of 'the writ petitioners be appointed as constables in the delhi police force.(2) the learned singe judge has held that the punjab police rules, 193.4, framed under the police act, 1861, continue to remain in force in delhi even after the promulgation of the delhi police (appointment & recruitment) rules, 1980 & thereforee relaxation made in favor of the wards of delhi policemen regarding age educational qualifications and physical standards by an order dated october 3, 1981, in accordance with punjab police rule 12.15 read with rule 12.14(3) entitles them to be recruited as constables in delhi police. the order relied upon by the writ petitioners reads as follows :' 'the wards of delhi poh'cemen should be given the following concessions in age,.....
Judgment:

Charanjit Talwar, J.

(1) This is an appeal under clause of the Letters Patent of Punjab High Court as applicable to this Court, by the Union of India challenging, the judgment of a learned Single Judge directing that 21 of 'the writ petitioners be appointed as constables in the Delhi Police Force.

(2) The learned Singe Judge has held that the Punjab Police Rules, 193.4, framed under the Police Act, 1861, continue to remain in force in Delhi even after the promulgation of the Delhi Police (Appointment & recruitment) Rules, 1980 & thereforee relaxation made in favor of the wards of Delhi Policemen regarding age educational qualifications and physical standards by an order dated October 3, 1981, in accordance with Punjab Police Rule 12.15 read with Rule 12.14(3) entitles them to be recruited as constables in Delhi Police. The order relied upon by the writ petitioners reads as follows :'

'THE wards of Delhi Poh'cemen should be given the following concessions in age, educational qualifications and physical standards, etc., for recruitment as constables in Delhi Police :

1. Age : up to 25 years.

2. Educational

QUALIFICATIONS: 9th pass.

3. HEIGHT:55'.

4. Chest : 2' relaxation.

All those wards of Delhi Police personnel who conform to the qualifications laid down above should be allowed to appear in the physical and written tests. Their forms should be accepted as it was being done before the introduction of New Rules.

The last date for acceptance of forms, may be enhanced from 3rd October 1981, to 15th October, 1981, and forms should be sold during holidays also.

SD]-A. K. Aggarwal,

DEPUTY Commissioner of Police :

HQ(1) Delhi.'

(3) The learned Judge bag negatived the contention that the Punjab Police Rules stood repealed on coming into force of the Delhi Police Act and the Delhi Police (Appointment & Recruitment) Rules, 1980, made there under. It has been observed that the appellants (respondents in the writ petition) cannot be allowed, to attack the above-quoted order as respondents While referring to the past practice of the respondents whereunder concessions, were granted to the wards of the Delhi Policemen, the learned Judge has further observed that the department's own conduct clearly shows that they were applying the Punjab Police Rules on the assumption that-they continue to be in force in Delhi. thereforee, it bag been held that the writ petitioners come within the purview of relaxation regarding age, educational qualification, height and chest and as such be taken in service having qualified in the test. It may be noted here that, out of twenty three petitioners, two of them, namely, petitioner No. 12, Prem Dutt and petitioner No. 15, Surinder Kumar,-were appointed ag constables during the pendency of the writ petition and, thereforee, no directions were required to be passed in their case.

(4) Another fact which may be noticed at this .stage is that six of. the writ petitioners, viz., petitioners 1, 2, 6, '9, 16 and 20 had been denied appointment as constables on the ground that their brothers had been enlisted earlier in the years 1975, 1976 or 1977, on the basis of concession, being sons of Delhi Policemen, hence rules could not be relaxed again to accommodate these petitioners. It may be noted that orders relaxing the recruitment rule in favor of petitioners .No. I and 2 had been revoked on this ground. The Learned Single Judge while holding that the action of the department was illegal qua those six writ petitioners has held that all the sons and even near relatives of the Delhi Police personnel are entitled to have preference over other candidates for police employment under sub-rule (3) of Rule 12.14 of the Punjab Police Rules. 'The learned Judge was of the view that no restriction could be read in that subrule.

(5) Mr. Y. K. Sabharwal, learned counsel for the appellants, submits that in view of the enforcement of the Delhi Police (Appointment & Recruitment) Rules, 1980, with effect from 31st December, 1980, the Punjab Police Rules in respect of appointment and recruitment extended to Delhi prior to the promulgation of Delhi Police Act, 1978, stood automatically repealed. He contends that the finding of the leared Single Judge that proviso to section 149 of the Delhi Police Act saves the Punjab Police Rules particularly Rule 12.15 read with Rule 12.14(3) is incorrect.

(6) The argument is that the provisions of Delhi Police (Appointment & Recruitment) Rules, 1980, have not only curtailed the power of the Commissioner of Police to enrol policemen but also the power to relax qualifications for the wards of Delhi Policemen for enlistment as constables. The power to relax the provisions of the said rules is now vested in the Administrator as per Rule 30 and not in the Commissioner of Police. That Rule reads as under : -

'30. Power to relax : When the Administrator is of the opinion that it is necessary or expedient so to do, he may, by order, for reasons to be recorded inwriting, relax any of the provisions .of these Rules with, respect to any class, category, or persons or in an individual case.'

(7) It is discharged that the Administrator of Delhi in the case of the petitioners was of the view that the rules laying down the qualifications for recruitment to the post of constable ought not to be relaxed although a recommendation to that effect had been made to him. In this connection the learned counsel invites our attention to a copy of the letter dated 14th February, 1982, by the Additional Commissioner of Police, Delhi, to the Secretary (Homes), Delhi Administration, Delhi, whereby a list of 106 candidates who were wards of Delhi Police personnel Class-IV employees and had qualified in the recruitment test was forwarded for approval of the Lt. Governor for enlistment as constables. According to the learned counsel the facts stated in the letter (copy Annexure Xvi with the counter-affidavit) distinctly show that the police authorities were conscious that due to the promulgation of the Delhi Rules, the Punjab Police Rules regarding recruitment of constables were no longer in force and that it was not within the competence of the Commissioner to relax the new Rules.

(8) It is useful to refer to two paragraphs of the said letter.

'2. Such relaxation were earlier within the competence of the Commissioner , Police in case of wards of police personnel but the power in 'this regard, under the new rules, vest in the Administrator only. It is felt proper to give these limited relaxations to wards of police personnel on compassionate grounds Union of India v. Yogender Pal Singh 365 as well as for maintaining proper morale in the force. This matter, I understand, had already been discussed by the previous Commissioner of Police with the Lt. Governor personally who had indicated that he would consider such recommendations favorably. It was after this only that we allowed the candidates to sit for regular tests.

3. Some of these candidates, I understand, had appeared before the Lt. Governor also since they were inadvertently called to join for training without obtaining the formal orders of relaxation. In view of the hardship being faced by them, I will be grateful if the requisite sanction for their enlistment is obtained from the Lt. Governor and conveyed immediately.'

(9) It is submitted that the concession granted to the wards of Delhi Policemen regarding age, educational qualifications and physical standards, as per the letter of 3rd October. 1981. enabling them to appear in the physical and written test was issued as Commissioner of Police was expecting that the Lt. Governor would be relaxing the rules. The Police authorities were aware that Punjab Police Rules regarding enlistment could not be a?ted upon. The concession to appear in the test did not give any right to the petitioners for enlistment a constable. In support of the contention that respondents in the writ petition did not attack the said letter of 3rd October 1981. as found by the learned Single Judge, Mr. Sabharwal has drawn our attention to the amendment made in the Standing Order No. 212 of 1981 (copy Anaexure X-3 with the counter-affidavit) whereby the wards of Delhi Policemen were given the same concession which is incorporated in the said letter of 3rd October. 1981,' but if was made 'clear that the enlistment of the wards was subject to the relaxation being granted by the competent authority. The relevant amendment reads asunder :

'(B) At the end of this para, the following may also be added ':-

The wards of the Delhi Policemen .will, however, be given the following concessions in age, educational qualifications and physical standards, to enable them to take the physical and written tests :

(1) Age : up to 25 years.

(2) Educational

QUALIFICATION: 9th Pass.

(3) Height : 5' 5'.

(4) Chest : 2-Inches relaxation.

However, their enlistment would be done only in case of .relaxation being granted by the competent authority and the mere fact that a candidate has qualified in the test will not in itself give him a right to enlistment.'

(10) It is further urged that the learned Single Judge has failed to appreciate the appellants case in law as well as on facts as brought out in the counter-affidavit and the documents annexed with it. The past conduct on which reliance has been placed in the judgment under appeal has been fully explained in ' . the counter-affidavit but not noticed

(11) The learned counsel has drawn our attention to averment contained in paragraph 5 of the counter affidavit filed on behalf of the respondents in the said writ petition regarding the non grant of relaxation. The said paragraph reads as under :

That para 5 of writ petition is denied. It is denied that' relaxation interns of Punjab Police Rule 12, 15 is available as alleged. It is' submitted that the relaxations to the wards of Delhi Policemen was neither granted by the Dicp (Admn. CP) nor by Lt. Governor Delhi and they were only allowed to take the physical and written test. However, the competent authority is not bound under any rule to grant such relaxations. Before the coming into force of the new rules, the relaxation to the wards of Delhi Police personnel were granted by the Dicp, under Ppr 12.15(1) by his general or special orders and there was no restriction of any fixed percentage for such relaxations in the matter of recruitment as constables for the recruitments held during the year 1981, the Administrator, Delhi has agreed to grant relaxations to the wards of Delhi Police Personnel only up to 7-1 f2 per cent of the total ^elections, by virtue of his special powers under rule 30 of Delhi Police (Appointment & Recruitment). Rules, 1980 and as such a policy decision was taken to give relaxation only to one son of Delhi Police man Class Iv serving Delhi Police Personnel Class Iv employees. This was done to give preference to the wards of the Delhi Police personnel, who have died retired incapacitated over the wards of the serving of the serving Police personnel and the relaxation benefit was also restricted to only one son, either already serving or to be recruited, as it was not considered justifiable to grant relaxation to 213 sons of police personnel in some cases denying this benefit in other cases even for only One son'.

(12) The crux of the appellant's case is that the Commissioner of Police, Delhi, unlike the Inspector General of Police in Punjab is not competent' to relax the recruitment rules' It is only the Administrator who could do so for reasons to be recorded in writing. The Administrator not having considered it fit to grant relaxation in the case of the petitioners although they were allowed to sit in the competitive test, they could not be held to be entitled to be enrolled as constables. It is urged that reliance by the petitioners on the letter of 3rd October, 1981 is entirely misplaced; it could not be made the foundation for the grant of the relief asked for in the petition.

(13) To appreciate the submissions of Mr. Sabharwal Rule 12.14(3) of the Punjab Police Rules which .lays down that sons and near relatives of Punjab Policemen have preference over other candidates for police employment may be noticed : '12.14

(3) Sons and near relatives of persons who have done good service in the Punjab Police or in the Army shall, subject to the consideration imposed by the rule 12.12 have preference over the other candidates for police employment'

(14) The age and other standards have been laid in Rule 12.15 of the Punjab Police Rules. Those standards, however, can be relaxed with the general or special sanction of the Deputy Inspector General.

(15) Now for the purpose of comparison the provisions of Rule 9 of the Delhi Police (Appointment & Recruitment) Rules, 1980 may be noticed :

'9. Recruitment of Constables : -Delhi being a cosmopolitan city, it is imperative to attract candidates from all parts of the country.

(II) The recruitment of constables shall be done twice a.year m^he,months of January and July by the Board to be nominated by Commissioner of. Police as per rule 8.

(III) The Commissioner of Police may also order special recruitment at any time if there are sufficient number of vacancies and the panels prepared earlier have exhausted.

(IV) Physical, education, age and other standards for recruitment to the rank of constables shall be as under : -

(A) Age : 18 21 yeas, Relaxable by 5 years for

(I) Scheduled Caste Scheduled Tribes Candidates.

(II) Sportsmen of distinction.

(III) Ex-servicemen as per rule 28 of these Rules.

(B) Height 170 cm., Relaxable by , centimeters for residents of Hill areas e.g. Gurkhas, Garhwalis.

(C) Chest -81 centimeters to 85 centimeters, Relaxable by 2 centimeters for residents of hill areas.

(D) Educational qualifications : MetricHigher Secondary 10th- of 10 plus 2. Relaxable up to 9th pass only for :

(I) Bandsmen, buglers, mounted constables, drivers, dispatch riders etc.

(II) for sons of police personnel who die in service.

(E) Physical standard : Sound state of health, free ' from defectdeformity disease, vision 6112 without glasses both eyes, free from colour blindness. No relaxation permissible.

(F) Reservation of vacancies.

(I) For Scheduled Caste, Scheduled Tribes, Ex-servicemen etc. as per orders issued by Government from time to time.

(II) For sons of Police personnel not more than 5 per cent of vacancies.

(VII) The Commissioner of Police shall frame standing orders prescribing application forms and detailed procedure to be followed for conducting physical efficiency, physical measurement, written tests and viva-voce fOr regulating the above mentioned recruitment.'

(16) Apart from reservation of vacancies provided in Rule 9(f), Rule 5(d) of these rules, provides that 5 per cent vacancies occurring in a calendar year can be filled by sons and daughters of policemen who died in service. That sub rule reads as under :- '

'5.(d). Notwithstanding the above rules, the Commissioner of Police shall be competent to make appointment of sonsdaughters of Police. Officers and men, who die in service without subjecting them to competitive test as. a special case up to 5 per cent of the. vacancies occurring in a calendar year in the rank of constable in which direct recruitment has been prescribed, subject to their possessing minimum technical, educational qualifications, age and physical standards for the said post, as prescribed in these Rules.'

(17) Under the Rule in force in Delhi physical, educational qualifications, age and other standards of recruitment to the rank 371 of constable can only be relaxed by the Administrator under Rule 30. The sons daughters of policeman who had died in service can be appointed by the Commissioner of police to fill five per cent of the vacancies occurring in a calendar year out subjecting them to a competitive test as special case subject, however, to their possessing the minimum educational, age and other physical standers as are Prescribed. Further reservation of Vacancies up to five year per cent has been made in the Rules for the son of police personnel. The police authorities of Delhi as is c.evident from Annexure Xvi to the counter-affidavit were aware that power to relax the rules now vests in the Administrator of Delhi only. It appears that at one stags it was hoped that the Administrator in exercise of his powers under Rule 30 would relax the minimum qualifications. It was under that belief that the petitioners were called for competitive lest. The wards of Delhi Policemen, it is conceded, were being given preference over other candidates under the Punjab Police Rules even after coming into force of the Delhi Police Act, 1978', but only prior ' to the promulgation of the, Delhi Police (Appointment & Recruitment) Rules, 1980. It is apparent that Rule 12, 14(3) of the Punjab Police Rules is not consistent with the Delhi Rules. Recruitment of constables in Delhi Police Force, cannot, and in our view rightly, be confined to the wards of Delhi Policemen whether in service or retired. It has been highlighted in Rule 9 that Delhi is a cosmopolitan city and it is imperative to attract candidates from all parts of the country for recruitment as constables.

(18) At this stage we may notice that Mr Sital A. K. Dar, counsel for the respondents concedes that Punjab Police Rule 12.14(3) is inconsistent with the Delhi Police (Appointment and Recruitment) Rules. 1980. He, however, submits that in consistency provided in Section 149 pertains to the provisions of the Act and not of the Rules. According to him sub-rule 12.14 (3) is not in consistent with any of the provisions of the Delhi Police Act, 1978, and thereforee still holds the field as per Section 149 of that Act.

(19) Relevant portion of Section 149 of the Delhi Police Act reads as follows :-

'149. Crasser of operation of certain enactments and savings.

(1) On the commencement of this Act the enactments ^ ^ ^^^ specified in Schedule Ii shall case to be in force in Delhi :

Provided that

(I) all rules and standing orders made (including the Punjab Police Rules, as in force in Delhi), appointments made, powers; conferred, orders made or passed, directions and certificates issued, consent, permit, permission or license given summons or warrants issued or served, persons arrested or detained or discharged on bail or bond, search warrant's issued, bonds forfeited and penalties incurred under any such enactment shall, in so far as they arc consistent with this Act, be deemed to have been respectively made, 'conferred, passed, given issued, served, arrested detained, discharged forfeited, or incurred under this Act;.' .

(20) It is true that rules including the Punjab Police Rules as in force in Delhi prior to promulgation of the Act in so far as these are consistent with the Delhi Police Act arc deemed to have been made under the Delhi Police Act. But the reference in Section 149 to 'any such enactment shall, in so far as they are consistent with the Act' is, in law, to be construed as 'consistent with the Act' and the 'Rules'. .It is well-settled that rules made under a statute, must be treated for' all purposes of construction exactly as if they were in the Act. Thus. the rules. have the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction. (See : State of Uttar Pradesh Vs . Babu Ram, : 1961CriLJ773 ). Mr. Dar's contention jas thus no force. It is rejected.

(21) The interpretation of the learned Single Judge that the proviso to Section 149 of Delhi Act gives a new lease of life to Punjab Police Rule 12.14(3) read with Rule 12.15 although the Punjab Police Act under which ' they were framed ceased 'to apply in Delhi is riot borne out if compared with the provisions of the Delhi Police (Appointment and Recruitment) Rules, 1980.

(22) thereforee, the finding of the learned Single Judge that that Rule is saved by proviso to Section 149 of the Delhi Police Act is wrong and liable to be set aside. We hold that the provisions of Punjab Police Rule 12.14(3) and Punjab Police Rule 12.15 have ceased to have any force in Delhi on the promulgation of Delhi Police (Appointment & Recruitment) Rules, 1980.

(23) Further, the finding that by letter dated 3rd October, 198l, the relaxation granted entitle the petitioners to be appointed as constables, is also to be set aside. The Commissioner of Police is not the final authority to relax the rules. It was for the Administration under Rule 30 of Delhi Police (Appointment & Recruitment) Rules, 1980, to do so. Admittedly, the Administrator did not consider it fit to relax the rules. Thus the basis on which the petitioners have founded their case is entirely misconceived. We disagree with the view that the appellants herein as respondents were attacking their own letter dated 3rd October, 1981. It is obvious that the Commissioner of Police had only given certain concessions to enable the wards of policemen It to sit in the competitive test. The petitioners admittedly did pass the test. However, vide amendment of the 8th November, 1981, it was made clear in the standing order No. 212181 that qualifying in the test by 'the wards of policemen gave no right them for consistent as constables. In view of the clear Rules and the condition imposed in the standing orders, which, appear to be statutory, the past practice of the appellants in giving preference to the wards of the Delhi Policemen can not be said to over-ride these provisions.

(24) Another fact, in this regard, which impressed the learned Single Judge was that in a meeting of the officials of the Delhi Administration and the Police department it was decided to propose a new Rule specifically superseding the Punjab Police Rules. The suggested draft of the proposed Rule 32 was in these words :

'WITH the coming into force of these rules, the corresponding provisions contained in Ppr relating to appointments and recruitments shall stand superseded and these rules shall operate and be in force, subject to the provisions as contained in the proviso to subsections (1) and (2) of Section 149^'^ Delhi Police Act, 1978'

(25) It appears that understanding of the officials was that till such a rule is enacted Punjab Police Rules continue to hold the field. As no no rule by way of amendment has been F framed, the learned judge came to the conclusion that Punjab Police.-Rules' are in force.

(26) We disagree. It appears to us that the officials concerned had not analysed the provisions of Section 149 of the Delhi Police Act. Their understanding does not appear to be correct.

(27) As noticed above six of the petitioners, namely, 1,2,6, 9,16 and 20 had been denied enlistment as constables on the ground that their brothers had been recruited earlier in the years 1975, 1976 and 1977. The learned single Judge has held that no restriction in the said Punjab Police Rule 12.14(3) can be lead for not prefering the second son or even for a ward of the Delhi Policemen for enlistment as constable in Delhi Police. We may note here that in the judgment under appeal a memorandum issued to petitioners No. I and 2 has been noticed wherein it has been stated that the Lt. Governor had relaxed the rules in their case and -that they were to report for training w.e.f. 15-6-1982. The appellants (respondents in the writ petition) case qua these two petitioners was that before, they were sent for training it was decided as per letter of 30th April, 1982, that 'only one son of police personnel class-IV employee would be considered for grant of such relaxation'. While noticing this fact the learned Judge has held that the letter was directly opposed to the Punjab Police Rules. It has been held by us above that the Punjab Police Rules regarding recruitment are no longer in force in Delhi, thereforee, the decision of the Additional Commissioner of Police as contained in the letter of 30th April, 19^2, which is in consonance with Rule 9 of the Delhi Police (Appointment & Recruitment) Rules, 1980, is to be upheld. In-view of the admitted position that brothers of petitioner No. I and had earlier been recruited in the Delhi E Police, those petitioners could not be accorded any relaxation. As such the relaxation granted in favor of petitioners No. I and 2 was liable to be withdrawn. These two petitioners along with the other petitioners were thus not entitled to be enlisted as constables under the Delhi Police (Appointment & Recruitment) Rules, 1980.

(28) Accordingly the appeal is allowed. The judgment passed on 21st July, 1983, of the Learned Single Judge is set aside. No order as to costs.


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