Jagat Narayan, J.
1. This is a petition under Article 226 of the Constitution by one Daulat Singh, officiating stenographer to the Superintendent of Police, Nagaur against an order of the Inspector General of Police, Rajasthan dated 31st October, 1956 removing him from service. The applicant filed an appeal to the Government which was also rejected. The rejection was communicated under letter dated 17th August, 1956. The present application was filed on 19th October, 1956.
2. The petitioner was appointed as a temporary clerk in the Police Department in the former Jodhpur State on 22nd April, 1948. He was appointed as a temporary stenographer with effect from 12th May, 1951 by the Superintendent of Police, Jodhpur and was transferred to Nagaur in the same capacity on 29th May, 1952. He was integrated as a clerk in the office of the Superintendent of Police, Jodhpur under order No. 11/P 5-1-59/420 dated 26th February, 1952 of the Inspector General of Police, Rajasthan. His services, however, continued to be utilised as a temporary stenographer on payment of Rs. 50/- as special allowance.
3. While he was working as stenographer to the Superintendent of Police, Nagaur he went to Jodhpur on Sunday the 16th November, 1952 after obtaining the permission of the Superintendent of Police to leave the station. His allegation is that he fell ill and could not resume his duties on 17th November, 1952 and that he sent an application for leave on medical grounds on 17th November, 1952 and after the expiry of the period for which leave had been applied, he sent another application for extension of leave.
It is not disputed that leave was not granted to him and as he remained absent without leave, he was suspended by the Superintendent of Police, Nagaur, on 19th December, 1952. He presented himself before the Superintendent of Police, Nagaur on 24th December, 1952 and was reinstated by the latter on 31st December, 1952. The period of his absence without leave was treated as privilege leave. A copy of this order was sent in due course to the Deputy Inspector General of Police, Jodhpur for information.
The latter was not satisfied with the action taken by the Superintendent of Police and directed him to hold a departmental inquiry after framing charges against him. The Superintendent of Police Nagaur thereupon framed four charges against the applicant and held an inquiry. He submitted his findings to the Deputy Inspector General of Police, Jodhpur. The latter found him guilty of the following three charges and by way of punishment stopped his increment for a year:--
1. That he absented himself from duties without leave or permission from 17th November, 1952 and did not join his duty till 23rd December, 1952;
2. That during this period of absence, he was attending law classes and that he was not ill as reported by him in his leave applications which were submitted later; and
3. That he absented himself from 17th November, 1952, but his leave application was received on 19th November, 1952 and second application for further extension on 11-12-1952. Thus he failed to apply for leave in time.
4. A copy of the order of the Deputy Inspector General of Police was sent to the Deputy Inspector General of Police Headquarters in due course and came to the notice of the Inspector General of Police. A notice of enhancement was issued by the latter on 2nd September, 1953 and an order of removal was passed on 16th October, 1953. The applicant filed a writ petition against that order in this Court on 2nd May, 1955. As there was some legal defect in passing the order of removal, the applicant was reinstated and a fresh notice of enhancement was served on him by the Inspector General of Police on 17th September, 1955. This was followed by the order of removal dated 31st October, 1955. This order has been challenged before us on various grounds.
5. It is argued that the Inspector General of Police had no power to enhance the punishment which had been awarded by the Deputy Inspector General of Police. On behalf of the State reliance was placed on Rule 100 of the Rajasthan Police Regulations, 1948, which runs as follows :--
'100. The Inspector General or the Deputy Inspector General may call for any proceeding, even where no appeal lies, and pass such orders as may seem fit, provided that no order under this rule shall be made to the prejudice of any person unless he has had an opportunity of showing cause against the proposed order. If he so desires he shall be granted a personal hearing and this fact shall be recorded in the proceeding.'
Rule 100 occurs in Chapter VI which is headed 'Rank, privileges, discipline, punishments and rewards.' Except for Rule 74 where it is specifically mentioned that it applies to executive as well as ministerial officers, the other provisions of this Chapter appear to us to apply only to the officers of the Police Force. Chapter IV, which is headed 'The Superintendent of Police's Office' deals with ministerial officers and Rule 55, which occurs in this Chapter, deals with punishments which may be awarded to ministerial officers and their right of appeal against the punishment.
Rules 86 to 97 deal with punishments to officers of the Police Force and Rule 98 deals with appeals by members of the Police Force against the punishments imposed on them. These rules occur in Chapter VI which deals mainly with the members of the Police Force. We are satisfied that Rule 100, which also occurs in this Chapter is only applicable to the members of the Police Force and is not applicable to ministerial officers. The Inspector General of Police therefore had no power to enhance the punishment 'of a ministerial officer.
6. It was also argued on behalf of the applicant that the Rajasthan Police Regulations, 1948 purported to have been issued by the Chief Secretary to the Government of United State of Rajasthan and not by the Rajpramukh and as such they are invalid. The State was unable to show that these regulations were approved by the Rajpramukh, So far as the applicant is concerned, even if it be assumed that Rule 100 o the Police Regulations was applicable to him, these rules were completely superseded by the Rajasthan Civil Services (Classification, Control and Appeal) Rules 1950 so far as ministerial officers are concerned.
It is not disputed that these rules were framed under Article 309 of the Constitution. Under these, rules, as they stood on the date on which the notice of enhancement was issued in this case by the In-spector General of Police, he had no power to en-hance the punishment imposed by any subordinate authority.
7. It was however argued on behalf of the State that since the applicant was integrated as a clerk by an order of the Inspector General of Police, the appointing authority in his case was the Inspector General of Police who alone could impose the punishment of reduction, removal or dismissal on him and that his power to impose these punishments was not exhausted by the fact that an officer subordinate to him had imposed a minor punishment on the applicant. Reliance was placed on Sobhagmal v. State, 1954 Raj LW 524 : (AIR 1954 Raj 207) (A), so far as the first part of the proposition is concerned. We are of the opinion that this contention is correct.
The order of the Deputy Inspector General of Police imposing the punishment of withholding increment for a year on the applicant could not prevent the Inspector General of Police who was the appointing authority, to reopen the case and to impose for the same misconduct a higher punishment which he alone was empowered to impose. There is no reason why he should not be able to do so in the exercise of his original powers of punishment as an appointing authority.
8. We would like to make it clear that it is only when the authority which actually imposes a minor punishment has not got the power of imposing a major punishment, that it is open to the higher authority to reopen the case and impose the major punishment in the absence of any power of enhancement.
9. It was argued on behalf of the applicant that the Inspector General of Police did not purport to act in the exercise of his powers as the appointing authority but purported to act as if he had power to enhance the punishment and so his order of removal cannot be upheld on the ground that he had a right to impose the punishment of removal as an appointing authority. The Inspector General of Police certainly purported to act as if he had the power to enhance the punishment which had been imposed on the applicant.
But to our mind that makes no difference in the circumstances of the present case as the applicant had a substantial opportunity of defending himself on the charges on which the Inspector General of Police found him guilty and was not prejudiced in any manner.
10. It is admitted by the applicant that he left Nagaur on 16th November, 1952 after obtaining the permission of the Superintendent of Police, Nagaur to leave the station just for a day. It is also admitted that he remained absent without leave from 17th November, 1952 to 23rd December, 1952 and afterwards sent a certificate by some Vaidya in support of his belated leave applications. His case is that he was unable to resume his duties during this period on account of illness.
He has at the same time admitted that during this period he was regularly attending law classes at the JaswanE College, Jodhpur. His case is that he was suffering from a peculiar type of fever which disabled him only during day time and that he was able to attend law classes regularly as they were being held in the evening. Rule 99 of the Rajas-than Service Rules, which are applicable to the applicant, makes it clear that leave cannot be claimed as of right and the discretion is reserved to the authority empowered to grant leave or to refuse leave at any time according to the exigencies of the public service.
Rule 75 lays down that even the grant of a medical certificate does not in itself confer upon the Government servant any right to leave. A Government servant cannot, therefore, avail of any leave unless it is granted to him. Rule 86 lays down that absence without leave amounts to misbehaviour. There can be no doubt that the applicant was really not ill but applied for leave on the ground of illness in order to attend law classes. It will thus be seen that there is hardly any dispute with regard to the material facts which form the basis of the charges on which the order of removal in this case is based.
It must therefore be held that the applicant had a substantial opportunity of defending himself, on the charges on which the Inspector General of Police found him to be guilty. There was thus substantial compliance of Article 311 of the Constitution.
11. We accordingly see no reason to interfereand reject the application. In the circumstances wepass no order as to costs.