P L D 1967 Supreme Court 506 (PLP)

HAMOODUR REHMAN, J.‑This appeal, by special leave, i.; directed against the judgment and order of a Division Bench of the High Court of West Pakistan at Peshawar, sumrnatily dismissing a petition filed by the appellant herein under Article 98 of the Constitution, to question the validity of an order passed on the 12th August 1960, by the Deputy Inspector‑General of Police, Peshawar Range, compulsorily retiring him from service with effect from the 20th of August 1960. The appellant was initially recruited as a Head Constable directly on the 5th January 1932, by the then Inspector‑General of Police, North‑West Frontier Province. He was confirmed in the said post after satisfactorily completing his probationary period of two years. Thereafter, he was temporarily promoted as an Assistant Sub‑Inspector of Police in the year 1936. Bu: in the year 1950, he was promoted as an Assistant Suit‑Inspector of Police in a permanent vacancy in the regular cadre and was subsequently confirmed against that substantive post in tab said cadre on the 1st of October 1956, by an order of the Deputy Inspector‑General of Police, Peshawar Range. Thereafter, he was temporarily promoted to the post of Sub‑Inspector of Police on the 21st of December 1958. On the 19th of March 1960, however, he was served with a charge‑sheet, alleging that he had proved himself an "utter failure in every respect and consequently unfit to hold the rank of Sub Inspector." His explanation submitted in answer to the above charge‑sheet, after being furnished with copies of the extract: from his confidential reports, was found unsatisfactory and on the 16th June 1960, he was served with a second charge‑sheet to show cause as to why he should not be compulsorily retired from service. The order of compulsory retirement was eventually passed on the 12th August 1960, by the Deputy Inspector General of Police, Peshawar Range, after considering his explana tions and his confidential reports from 1938 onwards. The officer concerned came to the conclusion that having regard to his unsatisfactory record of service and his objectionable behaviour and conduct, which came to light from his reports and the language in which his explanation was couched, he was inefficient and even his integrity and honesty were not above board. The appellant then moved the Additional Inspector‑General of Police, West Pakistan, in appeal against the above order but his appeal was rejected on the 29th of December 1960. He then went up by way of what he calls a "mercy petition" to the Inspector‑General of Police, West Pakistan. This was rejected on the 29th of January 1962. In 1963, after making further unsuccessful representations to the Government and the President, the appellant served a notice under section 80 of the Code of Civil Procedure upon the Provin cial Government and ultimately moved the High Court on the 3rd of October 1963. 1n the High Court two grounds were urged in support of his petition, namely; (i) that the appellant having been appointed initially by the Inspector‑General of Police a Deputy Inspector‑General of Police was not competent to order his compulsory retirement and (ii) that action should have been taken against him under the West Pakistan Govern ment Servants (Efficiency and Discipline) Rules, 1960, and not under the Civil Service Regulations, as reconstituted for the North‑West Frontier Province by its notification of the 31st December 1943, or under the North‑West Frontier Province Police Rules, 1937. The High Court took the view that the impugned order not having been made by way of punishment was competently made by the Deputy Inspector‑General of Police under the North‑West Frontier Province Police Rules, 1937. Furthermore, that, since the proceedings against the appellant were initiated before the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, came into force action under the Civil Service Regulations and the Police Rules was rightly taken by reason of the provisions of section 4 of the Provincial General Clauses Act. The petition was, accordingly, dismissed in limine on the 20th of May 1964. Against this order the appellant went up in review but another Division Bench of the same High Court dismissed the same treating it as a second writ petition on the same grounds. The petition for special leave to appeal was filed in this Court on the 8th August 1964, with an application for permis sion to sue as a pauper. After this permission was granted to him the petition was heard and leave was granted on the 17th of May 1965, after condoning the delay in the filing of the petition for special leave, to consider as to whether the order compul sorily retiring him had been competently made by the Deputy Inspector‑General of Police. The appellant, who has appeared in person, has argued that his case was governed by the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, which came into force on the 27th of July 1960, before the impugned order was passed. Under rule 4 thereof compulsory retirement was a penalty which could be imposed upon a Government servant who is proceeded against under rule 3 thereof for inefficiency, whether by reason of infirmity of mind or body or otherwise or for corruption or misconduct or subversive activities. Under sub -rule (5) of rule 4 no authority subordinate to that by which a Government servant is appointed is competent to impose the penalty of compulsory retirement or removal or dismissal from service. Rule 16 of these rules provides that they shall supersede all the existing rules and instructions in regard to matters dealt with in the said rules and, in particular, the rules specifically categorised in the said section. On the basis of these rules the appellant contends that there can be no doubt that the compulsory retirement directed in his case was by way of a punishment after proceedings were started by serving a charge‑sheet. The punishment could, therefore, only have been imposed by the appointing authority which, in his case, was admittedly the Inspector‑General of Police himself. In support of this contention the appellant has also relied on a decision of this Court in the case of the Government of West Pakistan v. Ch. Muhammad Ali (P L D 1966 S C 132), where it has been held that after the coming into force of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, compulsory retirement as a punishment can only be ordered in accordance with its provisions. This decision has, however, no direct applica tion, for, the precise question now under consideration did not arise in that case. As against this the learned Advocate‑General, appearing on behalf of the Government of West Pakistan, has contended that since the writ petition was filed in 1963, to challenge the validity of an order passed in August 1960, it was, in any event, barred on the ground of laches and should have been dismissed as such. But I am unable to accept this contention, for, it appears that the appellant immediately after the order was communicated to him filed an appeal there from and this appeal was dismissed by the Additional Inspector‑General of Police on the 29th of December 1960. From this order the appellant made a further representation by what has been described as a mercy petition, to the Inspector‑General of Police himself, and this was rejected only on the 29th of January 1962. The appel lant has now, with the leave of this Court, filed further documents to show that thereafter he moved various higher authorities, including the Home Secretary to the Government of West Pakistan, and the President of Pakistan on the 19th of November 1962, as also gave notice under section 80 of the Code of Civil' Procedure to the Government. His representations were finally rejected on the 7th November 1963, by Memorandum No. H. P. 1/12‑12/63, and it was within one month before this that he moved the High Court on the 3rd October 1963. It cannot. in the circumstances, be said that his petition under Article 98 was barred on the ground of laches. The learned Advocate‑General has next contended that the operation of the West Pakistan Government Servants (Efficiency) and Discipline) Rules, 1960, was excluded with regard to the cases initiated before the coming into force of the said rules and pending on the said date by a Notification No. S O. XII‑2‑167/60, issued on the 16th March 1961. This notification will not, however, apply in the present case, for the impugned order was made long before the amendment and his appeal was also disposed of before that date. In any event, it is argued on behalf of the Government that by reason of the provisions of section 4 of the Provincial General Clauses Act proceedings commenced before the coming into force of the 1960 rules would still continue to be dealt with under the previous rules. In the present case, therefore, since the appellant was charge‑sheeted on 19‑3‑60, his case would be governed by the North‑West Frontier Province Police Rules, 1937, and under rule 12.1 of the said rules the Deputy Inspector‑General of Police was competent to appoint Inspectors, Sergeants, Sub‑Inspectors and Assistant Sub‑Inspectors. When the appellant was appointed substantially as an Assistant Sub‑Inspector on 1‑10‑56, he was appointed by a Deputy Inspector‑General of Police, who is the authority who has now ordered his compulsory retirement from the post which he held substantively. Thus the appellant cannot now claim that since he had been originally appointed as a Head Constable by the Inspector‑General of Police the Inspector General of Police alone is competent to compulsorily retire him from service. The position altered when he was substantively promoted as an Assistant Sub‑Inspector of Police by the then Deputy Inspector‑General of Police. In this view of the matter even if the rules of 1960, applied the order for compulsory retirement had been passed by a competent authority. Finally it is urged that under paragraph 465‑A of the Civil Service Regulations read with paragraphs 349 and 474‑A thereof compulsory retirement after having put in service qualifying for pension is not removal from service within the meaning of section 240(3) of the Government of India Act, 1935. Thus since the retirement of the appellant was directed after the completion of service qualifying for pension, which is under the rules service for not less than 25 years, his compulsory retirement was not by way of punishment. In the present case, however, it is clear that the action taken against the appellant was by way of punishment for inefficiency and lack of integrity. A charge‑sheet was duly drawn up, he was called upon to submit his explanation and after consideration of his service records and his explanations it was decided to order him to be compulsorily retired. Then a second charge- sheet was served upon him to show cause as to why he should not be so compulsorily retired. It was only after this that the final order was made. It cannot, therefore, be now contended that the order of compulsory retirement from service was not passed as a disciplinary measure. There was some doubt at the representation stage before the Inspector‑General of Police as to whether the necessary charge-sheets had been served upon him, as copies thereof were not to be found on the file, but subsequently on the insistence of the Inspector‑General of Police copies thereof were obtained from the appellant himself. This abundantly proved that they had been served upon him by the then Deputy Superintendent of Police and the Senior Superintendent of Police of Peshawar respectively. The first charge‑sheet had also endorsed upon it the acknow ledgment of the appellant himself. There can be no question, therefore, that the procedure was duly complied with. It appears to me, however, that in the present case even if the 1960, rules applied, as contended by the appellant, he was compulsorily retired by a competent authority, namely, the authority which appointed him to the post which he hell substantively, namely; that of Assistant Sub‑Inspector of Police. This the post from which he was retired. He cannot now be heard to say that since he was originally appointed as a Head: Constable by the Inspector‑General of Police the Inspector General of Police alone could order his compulsory retirement. When he was appointed to the higher post in a substantive capacity his conditions of service became those which attached to the higher post to which he was so appointed. The conditions to service of a Head Constable were no longer applicable to him; for, he had completely shed that status and retained no further lien on that post. To hold otherwise would lead to absurd situations for, then a person initially appointed as a constable by say a Superintendent of Police would still be removable from service by him even after such a person bad been substantively promoted as an Inspector or even as a Deputy Superintendent of Police. This can hardly be consistent with any principle rule of service or of equity. In this view of the matter I do not consider it necessary to deal with the other points raised by the learned Advocate General, for, in my view, this appeal must fail on this ground. I would accordingly dismiss this appeal but make no order as to costs. S. A. RAHMAN, J.‑I agree. FAZLE‑AKBAR, J.‑I agree. M. YAQUB ALI, J.‑I agree. A. H, Appeal dismissed.