1. This is an application by Madanlal, an ex-employee of the Police Department, praying for the issue of a writ, direction or order to declare Rules 23 and 23A of the Rajasthan Government Servants and Pensioners Conduct Rules (hereinafter to be referred to as the Rules) as ultra vires and to quasb the order of the Deputy Inspector General of Police, Jodhpur Range, Jodhpur, dated the 17th March, 1960, dismissing the petitioner from' service as upheld by the order of the Inspector General of Police, dated the 17th December, 1960, An alternative prayer was also made for issue of a writ of mandamus for directing the respondents to recognise the Rajasthan Non-gazetted Police Karmachari Sangh.
2. The relevant facts are briefly these:
3. The petitioner was a constable in the Police Department in the former Jodhpur State and on integration of the former Jodhpur State with Rajasthan he was absorbed in the service of the Rajasthan State and was a Head Constable on the non-gazetted staff of the Police Department. The petitioner's case is that the Gazetted Officers of the Police Department formed an association and the same was recognised by the Government and is functioning. Thereafter the non-gazetted police employees also formed an association in the year 1957 in the name and style of 'The Non-gazetted Police Karamchari Sangh and the petitioner was one 08 the sponsors of that association. This association, according to the petitioner, was formed with an object of attaining the highest standard of efficiency, manifestation of loyalty, honesty, fearlessness, fraternity, self-sacrifice, devotion of duty and eradication of various other things that may tend ta tamper with the loyalty and discipline and to root out corruption. According to the petitioner, the association sent a copy of its constitution to the Government with a request for the recognition of the association and submitted various reminders but the Government neither recognised the association nor refused recognition.
In the meanwhile, the Deputy Superintendent of Police served a charge-sheet on the petitioner on 23rd May, 1958, the main charge being that the petitioner along with a few other police officials was trying to encourage the Rajasthan Non-gazetted Police Karamchari Sangh and that the petitioner was posing himself as cashier of the association and was trying to make other officials members of it. The departmental inquiry on this charge was, however, dropped. Later on, on 7th August, 1959, the Deputy Inspector of Police, Jodhpur Range, Jodhpur, issued orders suspending the petitioner from service and appointing Shri B.R. Bishnoi, Superintendent of Police, Jodhpur, for holding a departmental inquiry. The charges against the petitioner had not been framed upto that time and it was only on 8th February, 1960 that the charges were framed and the statement of allegations was prepared and subsequently served on the petitioner.
The principal charge was that the petitioner got himself enrolled as a member of the unrecognised non-gazetted Police Karamchari Sangh, Rajasthan, and was continuing as such and had been instrumental in establishing a branch of the association at Jodhpur. A number of other subsidiary charges were also framed. The petitioner in answer to the charges admitted his connection with the association but pleaded justification and stated that he was not liable to any discliplinary action on that ground. According to the petitioner, no inquiry was made into the charges, but on 29th February, 1960 he received a copy of the findings of the enquiry stating that charge No. 1 stood proved against him on the basis of his own admission and that it was not necessary to go into other charges. The petitioner was also served with a notice to show cause why he should not be dismissed from service. The petitioner in reply challenged the finding regarding charge No. 1. The Deputy Inspector General of Police, Jodhpur, however, by his order dated 17th March, 1960, dismissed the petitioner from service on the finding referred to above. The petitioner preferred an appeal before the Inspector General of Police, Rajasthan, which was dismissed by him, vide his order dated 17th December, 1960.
4. The petitioner's case is that the non-gazetted staff of the Police Department had the right to form an association and that Rules 23 and 23-A of the Rules prohibiting Government servants from becoming members of the association not recognised by the Government and leaving the question of recognition to the arbitrary and naked discretion of the Executive, are ultra vires of the Constitution and that his dismissal from service on the basis of the infringement of the said Rules is not sustainable.
5. The State in its reply, admitted that the petitioner was a Head Constable in the Police Department. It was also admitted that an association of the Gazetted Officers of the Police Department was lecognised by the State. It was, however, pleaded that the so-called Non-Gazetted Karamchari Sangh had not been recognised by the Government for the purposes of maintaining discipline in the police force. The fundamental right to form an association was admitted but the State claimed its right under the Constitution to imposereasonable restrictions on the exercise of this right. It was averred that in the case qf police officers whose duties are to maintain law and order, it was all the more necessary for the Government to exercise a discretion in the matter of recognising the constitution of such a Karamchari Sangh in the Police Department with caution and that non-recognition of such an association by the Government cannot be said to be unreasonable in the case of the employees of the Police Department and that the Government was not satisfied with the constitution of such an association on grounds of administration, discipline and public order. The allegation of the petitioner that a request was made to the Government for recognition was denied and it was averred in this connection that the petitioner had not named a person or the Department of the Government with whom he applied for recognition of the association or to whom he sent such reminders.
The State admitted that the Deputy Superintendent of Police had served a charge-sheet upon, the petitioner and had eventually dropped the departmental inquiry but explained this on the ground that the Deputy Superintendent of Police was not competent disciplinary authority to conduct an inquiry. The State purports to have admitted that the petitioner was dismissed only with reference to one charge, namely, that he got himself enrolled as a member of the non-gazetted Karamchari Sangh and took active part as such and maintained that the conduct of the petitioner in running the non-gazetted Karamchari Sangh, which was an unrecognised body, made him liable to a disciplinary action and that he was consequently, validly and properly dismissed from service. The reply of the State to the petitioner's challenge to the vires of the Rules was given as follows: -
'The citizens of India have no doubt got fundamental rights to form an association but they are subject to certain reasonable restrictions and those restrictions are necessary for due administration and securing the end of discipline and orderly conduct amongst police employees ............ Thatthe rules having been framed under the powers given under Article 309 of the Constitution are quite in accordance to the provisions of the Constitution and the instructions which provide the guiding principles do not in any way detract the validity of the rules, nor can they be considered illegal.'
The State thus emphatically denied the case of the petitioner and prayed for the dismissal of the writ petition.
6. It will be seen from the writ application and the reply that there is no serious controversy over facts between the parties. The State no doubt denied the allegation of the petitioner that steps were taken on behalf of the association to get it recognised. Mr. Guman Mal, however, invited our attention to Ex. L, a copy of the findings arrived at by the Deputy Inspector General of Police, Jodhpur Range, Jodhpur, wherein the following statement of facts appear: -
'An association was formed by some ex-Police Officers and was named as Rajasthan Non-Gazetted Police Karamchari Sangh in 1957. Off and on, efforts were made to get it recognised bythe Government, but up-to-date, the association has not been recognised.'
In the face of this recital, we find no difficulty in accepting the version of the petitioner that steps were taken on behalf of the association to get it! recognised and we consider that the State showed unnecessary reluctance in not admitting the fact.
7. It is well recognised that the right to form association is a basic and elementary right in democratic Governments and our Constitution has guaranteed the same under Article 19(1)(c). The State also does not dispute this fact. A mild suggestion was, however, hinted that the question of exercise of fundamental right by the Government servants as a class has to be viewed differently on account of their having consented to enter service and accept all reasonable service conditions. We need only observe in this connection that whatever may have been the controversy in the past the position stands finally concluded by the authoritative pronouncement of the highest Court of the land. The Supreme Court in Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166, after an exhaustive examination of the various arguments, relied upon to negative the rights of the Government servants to exercise fundamental rights and several American decisions, laid down the law as follows:
'The Article (referring to Art, 33) having thus selected the Services members of which might be deprived of the benefit of the fundamental rights guaranteed to other persons and citizens and also 'having prescribed the limits within which such restrictions or abrogation might take place, we consider that other classes of servants of Government in common with other persons and other citizens of the country cannot be excluded from the protection of the rights guaranteed by Part III by reason merely of their being Government servants and the nature and incidents of the duties which they have to discharge in that capacitymight necessarily involve restrictions of certain freedoms as we have pointed out in relation to Article 19(1)(e) and (g).'
The Supreme Court has, of course, specifically referred to the rights of 'other classes of servants of Government' on a consideration of Article 33 of the Constitution empowering the Parliament by law to abrogate or restrict the exercise of fundamental rights of the members of the armed forces and the forces charged with the maintenance of public order i. e., Police Force, but the decision of the Supreme Court can easily be relied upon in support of a proposition that in the absence of any law by Parliament abrogating or restricting the exercise of fundamental rights by the police officers, they too are entitled to the exercise of fundamental rights. In this view of the matter, the petitioner's right to the exercise of fundamental rights cannot be seriously challenged.
8. Now it is common ground between the parties that the petitioner had been dismissed only on the ground that he had infringed Rules 23 and 23-A of the Rules by joining and functioning as a member of an unrecognised association. The substantial controversy between the parties therefore is that while the petitioner contends that the Rules have denied or at any rate unduly and excessively restricted the fundamental rights of the petitioner and other non-gazetted employees of the Police Department and are ultra vires and void, the State, on the other hand, contends that they merely impose reasonable restrictions within the meaning of Article 19(3).
9. These Rules form part of the Rules framed under Article 309 of the Constitution, for regulating the conditions of services of the civil servant of the State. They read as follows:-
'23. Membership of Service Association -- No Government servant shall be a member, representative or officer of any association representing, or purporting to represent, Government servants or ony class of Government servants unless such association has been recognised by the Government.'
23-A. Joining of Associations of Government servants -- No Government servant shall form or continue to be a member of any service association of Government servants,
(a) which has not, within a period of sir months from its formation obtained the recognition of the Government under the rules prescribed in this behalf,
(b) recognition in respect of which has been refused or withdrawn by the Government under the said rules.'
The Rules do not provide for any opportunity of hearing before taking a decision refusing to recognise an association. They further do not provide any criteria with which to judge the question of recognition of associations. Indeed it is not possible to ascertain guiding principles in this behalf. The decision has been left to the subjective satisfaction of the Government. The State also in reply to para 12 sub-para (G) has taken the stand that
'it all depends upon the subjective satisfaction of the Government to recognise the institution after consideration of the aspects of the matter ia the light of better administration.'
It will be appropriate at this stage to mention that soon after the Constitution the Supreme Court had an occasion to discuss the nature of the fundamental rights to form an association and the limits of the permissible restrictions on them in State of Madras v. V.G. Row, AIR 1952 SC 196. Patanjali Sastri, C. J., speaking on behalf of the Court, observed as follows : -
'The right to form associations or unions has such, wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic fields that the vesting of authority in the executive government to impose restrictions on such right, without allowing the grounds of such imposition, both in their factual and legal aspects, to be duly tested in a judicial inquiry, is a strong element which, in our opinion, must be taken into account in judging the reasonableness of the restrictions imposed by Section 15 (2) (b) on the exercise ot the fundamental right under Article 19(1)(c); for, no summary and what is bound to be a largely one-sided review by an Advisory Board, even where its verdict is binding on the executive government, can be a substitute for a judicial inquiry. The formula of subjective satisfaction of Government or of its officers, with an Advisory Board thrown in to review the materials on which the Government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. In the case of preventive detention, no doubt, this Court upheld in A.K. Gopalan v. State of Madras, 1950 SCR 88 : (AIR 1950 SC 27) deprivation of personal liberty by such means, but that was because the Constitution itself sanctions laws providing for preventive detention, as to which no question of reasonableness couldarise in view of the language of Article 21 (Article 22?)'.
These observations made with regard to the association generally should also govern the service association except to the extent specified in AIR 1962 SC 1166 referred to earlier.
10. In the light of the above observations, the State having reserved the power to grant or refuse recognition to be exercised on its subjective satisfaction and having established no emergent and extraordinary circumstances warranting such reservation of power, we find no difficulty in concluding that prima facie the rules denied or unduly restricted the rights of the Government servants as a class to exercise their fundamental rights. To illustrate this point, it is unnecessary to travel beyond the facts of the present case which speak quite eloquently. The association was formed in the year 1957. It has not been recognised so far. In the meanwhile, the Deputy Superintendent of Police instituted a departmental inquiry in May 1958 and the charges framed against the petitioner mainly centred over his connection with the association. That inquiry was dropped in 1959. Another inquiry was instituted and eventually the petitioner was dismissed from service. In the back-ground of this fact it needs no elaborate argument to persuade us to hold that the impugned rules have been availed of to deny the fundamental right to the petitioner and other non-gazetted employees of the Police Department for a period of about five years and that the rules are capable of being applied to deny the exercise of fundamental right and are prima facie challengeable as ultra vires.
11. Mr. Raj Narain, made a feeble attempt to sustain them in the interests of public order. He referred to the amendment in Article 19(2) where several new grounds of restrictions upon the freedom of speech were introduced by the Constitution First Amendment Act of 1951. He particularly emphasised the expression 'public order' and argued that the scope and extent of the restrictions were widened by the introduction of the additional ground relating to 'public order'. On the basis of the widened extent of restrictions the suggestion was that the impugned rules have been intended to secure discipline and efficiency andshould be sustained in the interests of public order interpreted liberally.
12. The argument has not impressed us. Article 19(2) deals with restrictions on freedom of speech and expression and the amendment in this clause has no direct bearing in the present case. Bearing in mind, however, that the expression 'public order' which was subsequently introduced in Clause (2) has been there from the very inception in Clause (3), which is relevant for our purposes, cases interpreting public order as used in Clause (2) may be usefully referred to while interpreting Clause (3) also. The scope and meaning of the expression 'in the interests of public order' was considered in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, AIR 1960 SC 633 and the conclusion on the point was summarised in these terms: -
'Public order (Article 19(2) and (3) ) is synonymous with public safety and tranquillity. It is the absence of disorder involving breaches of local significance in contradistinction to national upheavals such as revolution, civil strife, war affecting the security of the State ......... There must be a proximate and reasonable nexus between the nature of the speech prohibited, (sic) ............... The connection has to be intimate, real and rational.'
We may also refer to AIR 1962 SC 1166. The facts of this case were that the Bihar Government had introduced Rule 4-A into the Bihar Government Servants' Conduct Ruies, 1956 reading as follows: -
'No Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service.'
The President and a few others of the Patna Secretariat Ministerial Officers' Association challenged the validity of the rule in the Patna High Court. The learned Judges of the Patna High Court upheld the validity of the rule by treating the restrictions imposed by it as reasonable in the interest of the public order. On an appeal, the Supreme Court reversed the decision of the Patna High Court and struck down the rule in so far as it introduced blanket ban on the right to demonstrate. The Supreme Court while taking notice of the fact that the demonstrations may be quite innocent and may also be noisy and disorderly, summarised the conclusion in these terms:
'No doubt, if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquillity or which would fall under the other limiting criteria specified in Article 19(2) the validity of the rule could not have been sustained. The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration -- be the same however innocent and however incapable of causing a breach of public tranquillity and does not confine itself to those forms of demonstrations which might lead to that result.'
If a complete ban on demonstrations cannot be sustained, there is still less justification for rules which prohibit formation of association of the Government servants except after a prior recognition by the Government which recognition may be refused on a merely subjective satisfaction of the Government. The principle of the case is thus fully applicable to the facts of the present case. The exact case on the point is S. Vasudevan v. S.D. Mital, AIR 1962 Bom 53. Before the Bombay High Court, the validity of Rule 4 (B) ofthe Central Civil Services (Conduct) Rules (1955) was challenged. The rule reads as follows: -
''No Government servant shall join or continue to be a member of any Service Association of Government servants: (a) which has not, within a period of six months from its formation, obtained the recognition of the Government under the rules prescribed, in that behalf, or (b) recognition in respect of which has been refused or withdrawn by the Government under the said rules.'
The rule was declared ultra vires by the Bombay High Court and, in this connection, the following observations were made: -
'Even though the rule in terms does not prohibit government servants from forming associations or unions, by making membership of unrecognised associations a disciplinary offence, it has in substance done so and in considering infringement of fundamental rights it is the substance of the impugned Act or rule that matters and not the term.'
The learned Judges further observed
'We fail to understand how a member of a service association which is not recognised by the Government or whose recognition has been withdrawn by it would endanger public peace, safety and franquillity'.
The impugned rules are in the same terms as Rule 4 (B) of the Central Civil (Conduct) Rules (1955) declared ultra vires by the Bombay High Court. On the basis of reasoning adopted by the Bombay High Court the validity of these rules cannot be sustained with reference to the interest of the public order.
13. Even so, it was argued by Mr. Raj Narain presumably on account of some distinction between police officers and others indicated by the Supreme Court in AIR 1962 SC 1166 that the petitioner belongs to the police force of the State which is directly concerned with the maintenance of law and order and which must of necessity be a highly disciplined force, and on these considerations he made a submission to use his own words, 'that the rules should not be declared ultra vires on a writ application by a police employee.' We treat this submission to imply that the restrictions envisaged in the rules cannot be considered as unreasonable qua police officers and that the rules in their applicability to the police force are not ultra vires.
We are unable to accept this contention and our reasons are two-fold. Firstly, it must be borne in mind that the restrictions to be imposed on the exercise of fundamental rights should be reasonable and not arbitrary, excessive and oppressive and should have reasonable relation to the object the legislation seeks to achieve. The State seeking to sustain the rules with reference to public order and the need of a disciplined police force for that purpose must establish a real and substantial relation between the restrictions imposed in the rules with the maintenance of discipline in the police force ami eventually with the interests of the public order. The State has failed to do so. We cannot easily comprehend why the reservation of a drastic power to refuse recognition of association of the non-gazetted police officersshould be considered reasonably necessary in the interest of discipline in the police force and why the discipline of the police force cannot be otherwise secured by more reasonable provisions such as the making of specific objectionable activities of the association and its members as disciplinary offences or requiring constitutions of the associations to contain provisions for the prevention of activities prejudicial to the public order.
It is also noteworthy that admittedly a Gazetted Police Officers Association was formed and stands recognised and has been functioning for quite a long time and there is no suggestion that it has in any way adversely affected the interests of the discipline in the police force directly and the interest of the public order indirectly. We cannot appreciate why the position with regard to an association of the non-gazetted employees should be viewed differently. Mr. Rajnarain sought to make out a distinction between the gazetted officers and non-gazetted staff and suggested that the possibilities of indiscipline and irresponsibility being more in this class of officers the need for a prior strict scrutiny before the recognition of their association is the greater.
It is difficult for us to accept such general and unwarranted presumptions and we feel inclined to observe that in the context of a goal of welfare State, the liberty and dignity of even the lowest category of Government servant deserves to be recognised. It may also be significantly pointed out that in the matter of discipline it will be proper to be guided by fair and generally acceptable notions. It cannot be denied that while there are some people who believe in great authoritarianism and enforcing discipline in a mechanical manner, there are others who believe that an attitude of trust in the subordinates, a fair deal with them and a proper appreciation of their services are the most suitable means to secure an effective and enlightened discipline and that an attitude of initial mistrust in them and an arbitrary and capricious exercise of powers by the superior officers and lack of objective appreciation are in the ultimate and final analysis disruptive of discipline whatever may be the apparent temporary effects.
In this background, on a proper and balanced consideration of the question of discipline, we have not been able to persuade ourselves to hold that the reservation of a drastic power of refusing recognition of association is at all reasonably connected with the discipline in the non-gazetted staff of the police force. We may also refer in passing to the opinion expressed in various quarters that it will not be unreasonable to expect that the superior police officers by setting personal example of showing correct sense of duty and integrity, by sympathetic guidance, by their interest in raising the intellectual, moral and economic status of the subordinates can make such associations useful instruments for securing efficiency and discipline.
On a consideration of all these circumstances, we are clearly of the opinion that the restrictions imposed on the fundamental rights by the rules are not reasonably related to the discipline in the non-gazetted staff. Then, there is the further requirement of establishing reasonable connection between the need of maintaining discipline in this class oiemployees In the non-gazetted police force with the interests of public order so as to reasonably relatethe later with the restrictions imposed by the rules. We, however, do not propose to go into this question at any great length as we consider the contention with regard to the need of restrictions in the interest of public order stands rejected on the finding as to the absence of any direct and reasonable relation between the restrictions and the discipline in the police force.
14. Secondly, the rules have been framed under Article 309 of the Constitution for regulating the conditions of the entirety of civil servants and have no reference to the peculiar nature of the duties of the police officers. Article 33 of the Constitution while recognising the peculiar nature of duties of the police officers has made provisions for the abrogation and restriction of fundamental rights bat the founders of the Constitution in their wisdom reserved the exercise of such power only under law to be framed by the Parliament. We may also conceive of reasonable provision in the police regulations for the maintenance of discipline in the police forte. We are, however, quite unable to appreciate a plea as to the peculiar nature of the police force in relation to a rule under Article 309 of the Constitution regulating generally the conditions of services. Even if this were possible, the rule having been found ultra vires quaGovernment servants generally it is not competent to this Court to exercise legislative functions andto reconstruct them after removing the unconstitutional restrictions as the rules are incapable of severance. This Court cannot but annul the rules themselves.
15. Mr. Rajnarain made still a feebler attempt to sustain the rules in the interest of morality. The argument was novel but at the same time extremely half-hearted. No attempt wasmade to indicate even generally the connotation of the term 'morality' as used in Article 19 of the Constitution and to build up a proper and legal argument. He merely referred to the need of discipline in the police force and sought to relate it with morality. Even on a cursory examination of the legal position, it appears to us that the actssought to be restrained in the interests of morality should be such as are regarded as acts of immorality by the consensus of general opinion and not merely such the condemnation of which depends upon controversial topics. In the matter of Bharati Press, AIR 1951 Pat 12 (SB), Sarjoo Prosad J., expressed the opinion: -
'That the expression 'against decency and'morality' has been given a narrower connotation in the Penal Code and may be deemed to have been used in the same sense in the Constitution Act as well'.
There were absolutely no materials to justify an inference that the interests of morality can be reasonably invoked to justify the reservation of the power contemplated in the rules directly or indirectly through the medium of discipline in the police force. The contention in this behalf must be rejected.
16. In the light of the above discussions, rules23 and 23-A of the Rules must be held to infringe the fundamental rights of the Government servantsas a class and cannot be sustained with reference to the interest of the public order or morality and they have to be declared ultra vires of the Constitution. The petitioner having been dismissed from service only on the basis of the infringement of these rules, his dismissal from service cannot also be sustained. We have, therefore, no alternative but to accept this writ application.
17. The writ application is allowed, Rules 23and 23-A of the Rules are declared ultra vires ofthe Constitution and the order of the Deputy Inspector General of Police, Jodhpur Range, Jodhpur,dated the 17th March, 1960, as upheld by the Inspector General of Police, Rajasthan, dismissing thepetitioner, is set aside. There will be, however, noorder as to costs.