1. The petitioner in the present case was working as an Unarmed Head Constable in Kutch District and was at the relevant time attached to Kandla Police Station in Kutch District. An incident took place on April 2, 1963, in connection with a sailor, by name Jorgenson v. Sherman, of S. S. Marine Ranger; and it was alleged against P.S.I. Mehta of Kandla Water Police Station, the present petitioner and against another Head Constable attached to the Police Station, Head Constable Chandgiram that they accepted in concert with each other bribe of Rs. 500/- for not instituting a case against the said Sherman even though he was found drink in the territories which were within the juisdiction of the Police Station and even though he was carrying a bottle of liquor with him. By the Order, dated July 30, 1963, passed by the District Superintendent of Police, Kutch, the petitioner was suspended for his alleged part in this incident and thereafter by the order, dated September 3, 1963, the first respondent, the District Superintendent of Police, Kutch District, served a chargesheet on the petitioner in connection with the Departmental Enquiry that was insituted against the petitioner. Thereafter respondent No. 1 held the Departmental Enquiry against the petitioner and after the evidence was recorded and the first stage of the enquiry was over, on February 29, 1964, the petitioner was served with a show-cause notice by the first respondent asking the petitioner to show cause why he should not be dismissed from service. Originally the time fixed for submitting the reply to the show-cause notice was a period of 7 days from the date of the receipt of the show-cause notice. Thereafter the time for submitting the reply to the show-cause notice was twice extended for a period of 10 days each and the last date for submitting the reply was April 17, 1964. The reply was presented by the petitioner in person on April 21, 1964, but the first respondent did not accept the reply on the ground that it had not been submitted within the stipulated time. The first respondent by his order, dated April 18, 1964, dismissed the petitioner from service. Thereafter the petitioner filed an appeal to the Deputy Inspector General of Police, Rajkot Range, the second respondent herein, and the appeal was disposed of by the second respondent by his order, dated August 26, 1964. The second respondent confirmed the conclusion of the first respondent that the charge against the petitioner had been established and he also confirmed the order of punishment passed against the petitioner by respondent No. 1 and the appeal filed by the petitoiner was, therefore, dismissed. The present petition has been filed by the petitioner challenging the order of dismissal.
2. Various contentions have been set out in the petition challenging the legality of the order passed against the petitioner but at the hearing of the petition before us Mr. Mankad, appearing on behalf of the petitioner, has confined arguments mainly to one argument. We must make it clear that he has not given up his other contentions but he has indicated that if we were in a position to accept his contention on that one point, it is not necessary for us to go into other contentions set out in the petition. It is possible that if we accept that main contention of Mr. Mankad and set aside the order of dismissal, another Depatmental Enquiry may be held against the petitioner and in the course of that second Departmental Enquiry some thing that we might say or observe regarding the other points set out in the petition might prejudice the case of the petitioner. The circumstance which has induced us to consider this one point, which has been mainly urged before us by Mr. Mankad, is that if we come to the conclusion that the petitioner is entitled to succeed on that one point, we need not express any opinion in the course of this judgment regarding any of the other contentions set out in the petition.
3. This contention which has been principally relied upon by Mr. Mankad is set out in Para 1 of the petition and the statement therein that the petitioner was appointed Head Constable in Kutch District Police Force by the Deputy Inspector General of Police, Rajkot. Mr. Mankad has contended that under Art. 311(1) of the Constitution, the petitioner should have been dismissed only by an authority not subordinate to that by which he was appointed. Mr. Mankad's contention is that the petitioner was appinted Head Constable in Kutch District by the Deputy Inspector General of Police, Rajkot Range and, therefore, the order dismissing him from service could only have been passed by an authority not subordinate to the Deputy Inspector General of Police. The contention in this connection is that inasmuch as the order of dismissal was passed in the first instance by the District Superintendent of Police, Kutch, who clearly is an officer subordinate in rank to Deputy Inspector General of Polie, Rajkot, the order dismissing the petitioner from service violates Article 311(1) of the Constitution. In this connection, we may point out that though this particular data is not availabel from the materials on record, it is common ground between the parties that the petitioner was appointed in the first instance as a Police Constable by the D.S.P. of Madhya Saurashtra District in the former State of Saurashtra and he was so appointed on March 8, 1950. It is not in dispute before us that on May 25, 1957, the Deputy Inspectir General of Police, Rajkot Range, issued an Office order to the following effect:-
'Following Constables are promoted as Head Constable and transferred to Kutch District in the interest of public service.' And the name of the present petitioner is set out in the list of constables who were so promoted from Madhya Saurashtra District and transferred to Kutch District. A copy of that order of the Deputy Inspector General of Police, Rajkot, is annexed to the affidavit-in-rejoinder filed by the present petitioner in these proceedings.
4. It is, therefore, clear that though the original appointment of the petitioner as a constable was by the District Superintendent of Police, Madhya Saurashtra District, the order promoting him and at the same time transferring him to Kutch District was passed by the Deputy Inspector General of Police, Rajkot. This order of the Deputy Inspector General of Police is a composite order by which there has been both promotion and transfer so far as the petitioner was concerned.
5. Under Article 311(1) of the Constitution of India, it has been provided that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Therefore, it is clear that it is the factum of appointment of the particular Government servant that is to be considered and the question is not whether any officer lower in rank to that officer who actually appointed the Government servant could have made that appointment.
6. In N. Somasundaram v. State of Madras, AIR 1956 Mad 419, Rajagopalan, J., has rightly pointed out:-
'The competence of the authority to order removal or dismissal will have to be determined with reference to the requirements of Art. 311(1) of the Constitution and one of the requirements is that the authority that orders the dismissal or removal should not be one subordinate in rank to that by which the civil servant in question was appointed.
And the principle would appear to be that it is the factum of the appointment of the civil servant, who claims the guarantee, that determines the scope of the guarantee conferred by Art. 311(1).
Where an authority, higher then the one entitled under the statutory rules to order an appointment, in fact ordes a valid appointment, it is the factum of that appointment that controls the scope of the guarantee conferred by Art. 311(1) of the Constitution and if such a civil servant is dismissed or removed from service by an authority, no doubt, competent under the rules to order the appointment and also to order dismissal, which however, is lower in rank than the authority which in fact ordered the appointment, such as order would contravene the provisions of Art. 311(1) of the Constitution.'
In the instant case, it is clear that a District Superintendent of Police is competent under the provisions of the Bombay Police Act, 1951, and the statutory rules made thereunder to promote a constable to the post of Head Constable and also to initiate disciplinary proceedings against a Head Constable and to dismiss him from service. Thus, so far as a Police Head Constable is concerned, it is competent to a District Superintendent of Police both to promote an individual Police Constable to the post of Head Constable and also to dismiss him after holding an appropriate Departmental Enquiry against him. But the question at controversy before us is whether the order passed by the Deputy Inspector General of Police in the instant case promoting the present petitioner from Constable to Head Constable and by the same order transferring him to Kutch District from Rajkot District, amounted to an order of appointment or a mere order of promotion without having an element of fresh appointment in it. It is clear that if an order promoting a Constable to the post of a Head Constable amounts to fresh appointment then, in the light of the above intepretation of Art. 311(1) and the above decision of the Madras High Court in N. Somasundaram's case, AIR 1956 Mad 419 (supra), with which we are in agreement, it is clear that the order dismissing the petitioner from service could have been passed by an Officer not subordinate in rank to the Deputy Inspector General of Police; and the order in the instant case having been passed by the District Superintendent of Police, Kutch, who was admittedly an officer inferior in rank to the Deputy Inspector General of Police, the impugned order would be clearly violative of Art. 311(1) of the Constitution and would, therefore, be bad.
7. The learned Government Pleader appearing on behalf of the State has contended that the power to promote a constable to the post of a Head Constable rests with the District Superintendent of Police in each district and further that when an order of promotion in such a case is passed, there is no fresh appointment but there is a mere promotion from a lower post to a higher post. We are unable to accept this contention of the learned Government Pleader because we find from the Bombay Police Manual, 1959 Vol. I dealing with administration, that under R. 97, Aat page 72, provision has been made for cadres of Head Constables and Constables and sub-rule (1) of R. 97 provides:
'The cadre of Head Constables is divided into three Grades.'
And thereafter that sub-rule lays down the proposed percentages for the three different grades of the cadre of Head Constables. It is clear from sub-rule (4) of Rule 97 and also from sub-rule (6) of Rule 97 that appointments to the cadre of Head Constables can be made either by promotion from constables or by direct appointment as Head Constables of any grade (Armed or Unarmed). The appointments as Head Constables under sub-rule (4) of candidates either promoted from the rank of constables or directly appointed is made for a probation for two years. Sub-rule (6) provides that Cosntables and directly recruited Head Constables will be confirmed, if found fit by the Superintendent of Police, at the expiration of the period of probation; and sub-r (2) provides that the appointment of the Head Constables by promotion will be made by Superintendent of Police. Thus, Rule 97 makes it abundantly clear that there is a separate cadre of Head Constables and the appointments inthis cadre are from two different sources - (1) by promoting constables and (2) by directly recruiting persons as Head Constables and so far as the appointments by promotion are concerned the power to make such appointments has been conferred on the Superintendents of Police in each district. In view of these provisions of Rule 97 of the Bombay Police Manual, it is difficult to accept the contention of the learned Government Pleader that when a constable is promoted to the cadre of Head Constable, there is no fresh appointment in that cadre. Judging from the provisions of Rule 97, which we have set out hereinafbove, it is clear that from whatever source a candidate is recruited in the cadre of Head Constables, every Head Constable is to be appointed as such, first on probation for a period of two years and thereafter if he is found fit by the Superintendent of Police on the expiration of the period of probation, he is to be confirmed as Head Constable. In the light of these different provisions of Rule 97 providing for a separate cadre of Head Constables and providing for recruitment from two different sources, promotion and direct appiontment, and further providing for confirmation as Head Constable after the probation for a period of two years and that every candidate from whatever source recruited as Head Constable, has to undergo a probationery service in that cadre for a period of two years, it is clear that whenever any constable is promoted from the rank of constable to the cadre of Head Constable, a fresh appointment takes place as such and under these circumstances, it is clear that the promotion of the present petitioner from an ordinary constable attached to the Police force of Madhya Saurashtra District as it then was, to the post of Head Constable, Kutch District, was a new appointment for him; and inasmuch as that appointment was made by the Deputy Inspector General of Police, Rajkot, the order dismissing the petitioner from service could only have been passed by an officer not subordiante in rank to Deputy Inspector General of Police. It is true, as was emphasized very strenuously by the learned Government Pleader that it was competent to the District Superintendent of Police to promote the petitioner from the rank of constable to the cadre of Head Constables; but as we have pointed out above, under Article 311(1), in order to judge as to whether the petitioner was dismissed from service by an authority not subordinate in rank to the authority that appointed him, we have to look to the factum of appointment as Head Constable and not to the competent authority who could have appointed the petitioner as Head Constable.
8-9. In support of his arguments that the promotion of the petitioner from the rank of constable to the cadre of Head Constables did not involve a fresh appointment the learned Government Pleader drew out attention to Section 14 of the Bombay Police Act, 1951. Sub-section (1) of that Section is in these terms:
'Every Police Officer of the grade of Inspector or below, shall on appointment receive a certificate in form provided in Schedule II. The certificate shall be issued under the seal of such officer as the State Government may by general or special order direct.'
The provisions of sub-section (2) of Section 14 are not relevant for the purposes of this judgment. In Schedule II to the Bombay Police Act, the form of certificate of appointment in the Police Force has been set out. It was contended by the learned Government Pleader that if in fact the promotion of the petitioner from the rank of constable to the cadre of Head Constables amounted to a new appointment, a new certificate of appointment in the form set out in Schedule II in accordance with the provisions of Section 14 would have been issued to him. He further contended that since the petitioner did not bring before the Court any such fresh certificate of appointment as Head Constable, the order promoting the petitioner to the cadre of Head Constable should not be considered to be an order of fresh appointment. This contention must be rejected because even assuming that a fresh certificate of appointment in the form set out in Schedule II had not been issued to the petitioner after his promotion as Head Constable by virtue of the order of the Deputy Inspector General of Police, the omission on the part of the authorities concerned to issue such a certificate cannot be of any assistance to us in deciding whether the promotion from the rank of constable to the cadre of Head Constable is or is not a fresh appointment for the purpose of deciding the question under Art.311(1) of the Constitution. If in fact in the light of the provisions of the statutory rules and regulations, the order promoting a constable to the post of a Head Constable amounts to an order of fresh appointment, the mere fact that a fresh certificate of appointment in connection with such promoted Head Constable is not issued can never mean that such an order of promotion does not amount to an order of fresh appointment. In our opinion, the real effect of an order promoting a constable to the post of a Head Constable has to be decided independently of the provisions regarding the issuing of certificate of appointment, which is a mere documentary evidence of the fatum of appointment and does not in any way elucidate as to what are the legal consequences of an order promoting a constable to the cadre of Head Constables.
10. In our opinion, the only conclusion that one can reach in the light of the provisions of Rule 97 of the Bombay Police Manual, which applies to the Police Force in the State of Gujarat, is that when any person is appointed in the cadre of Head Constable either by promotion or by direct appointment, there is a fresh appointment in that cadre and it cannot be said that simply because out of the two sources of recruitment to the cadre of Head Constable, one source, viz., promotion, is resorted to, there is no fresh order of appointment as Head Constable. Under these circumstances, we have come to the conclusion that the order promotion the petitioner from the rank of constable to be rank of Head Constable and transferring him from Madhya Saurashtra District to the Kutch District amounted to a fresh order of appointment. We have further come to the conclusion, in the light of the provisions of Art. 311(1), that since that order of appointment of the petitioner as Head Constable was passed by the Deputy Inspector General of Police, Rajkot, in 1957, the petitioner should not have been dismissed from service by an officer subordinate in rank to the Deputy Inspector General of Police. It is not in dispute before us that in the instant case, the order dismissing the petitioner from service has been passed in the first instance by the District Superintendent of Police, Kutch. The fact that there was an appeal and that appeal was disposed of by the Deputy Inspector General of Police, Rajkot, does not mean that the order of dismissal passed by the District Superintendent of Police, Kutch, as the authority in the first instance, is not vitiated as being in contravention of Art. 311(1). In our opinion since the order of dismissal in the instant case was passed by an officer subordinate in rank to the officer who actually appointed the petitioner as Head Constable the order of dismissal is vitiated and, therefore, it must be set aside.
11. In R.P.Kapur v. Union of India, AIR 1964 SC 787, it has been held by the Supreme Court:-
'On general principles the Government like any other employer, would have a right to suspend a public servant in one of two ways. It maysuspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. Or the government may proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. These general principles will apply to all public servants but they will be subject to the provisions of Art. 314.
The authority entitled to appoint a public servant would be entitled to subspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. This general principle is illustrated by the provision in Section 16 of the General Clauses Act which is in consonance with the general law of master and servant. But what amount should be paid to the public servant during interim suspensions will depend upon the provisions of the statute or rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. This suspension must be distinguished from suspension as a punishment which is a different matter altogether depending upon the rule in that behalf.'
It maybe pointed out that under the provisions of Art. 311(1) of the Constitution, it is only when at the end of departmental enquiry, a decision has to be taken regarding the dismissal or removal from service, that the question has tobe considered as to which was the authority that actually as a matter of fact appointed that particular Government servant. So far as the order directing that the particular government servant be suspended or that a particular Departmental Enquiry should be held against a particular Government servant is concerned, it is the competency of the authority concerned that has to be looked at in the light of the rules as they stand; and the question does not arise at that stage as to whether the officer who appointed the Government servant concerned was subordiante in rank to the office ordering interim suspension or directing Departmental Enquiry. Under these circumstances, the contention urged on behalf of the petitioner that the order of suspension passed by the D.S.P. Kutch, on July 20, 1963, is vitiated, cannot be sustained and that contention of the petitioner must fail.
12. The result, therefore, is that the challenge to the order of suspension fails but the petitioner succeeds in his challenge to the order of dismissal passed against the petitioner confirmed in appeal by the second respondent. We, therefore, set aside the order of dismissal passed against the present petitioner. We wish to make it clear that we do not express any opinon regarding any other point urged in this petition; and if the Government are so advised, it would be open to them to pass such order as they may think proper in accordance with law. The petition is allowed to this extent and the rule is made absolute. The respondents will pay the costs of this petition to the petitoner.
13. Rule made absolute.