P L D 1966 (W (PLP)

(except direct appointments) Assistant Sub‑ Deputy Inspectors Full power subject Inspectors General of Police to rules governing the conditions of service as defined in Police Rules "13.3. . . . . . . . Substantive promotions to the rank of Sub‑Inspector and Assistant Sub‑Inspector shall . . . . . be made by the Deputy Inspectors‑General of Police . . . . . 13.9. . . . . . . . Substantive promotion (to the rank of the Assistant Sub -Inspector) shall be made by the Deputy Inspector‑General of Police in accordance with the principles . . . . . 13.10. . . . . . . . Vacancies (to the rank of the Sub‑Inspector) . . . . . may be filled by promotion of any eligible man in the range at the discretion of the Deputy Inspector‑General of Police. 16.1. . . . . . . . The departmental punishments mentioned in the ... . . . column of the subjoined table may be inflicted on officers of the (rank) shown in the heading . . . . by the (officer) named below (the) heading . . . . , or by any officer . of higher rank:‑ Departmental . . . Sub punishment Inspectors and Assistant Sub Inspectors Dismissal

Superintendents of Police . . ."

9. It will be seen that the basic rule governing appointments whether by direct recruitment or by promotion, is rule 12.1. Rule 13.3 figures in a different context but is in complete accord with rule 12.1. , Similarly rules 13.9 and 13.10 are framed for a different purpose (to lay down the principles in accordance with which the appointing authority is to act) but are fully consistent and in harmony with the other provisions. And the power to dismiss has been delegated to an authority subordinate to the authority competent to make the appointment.

10. The Government of India Act, 1935, contained certain provisions in regard to dismissal of Government servants, in the subordinate ranks of the Police, the relevant portions of which are reproduced below:' "240. . . . . . . . . No (member) of civil service . . . . . shall be dismissed from service . . . . . by any authority subordinate to that by which he was appointed.

243. Notwithstanding anything in the 'foregoing provisions the conditions of service of the subordinate ranks of the various police forces . . . . . shall be such as may be determined by or under the Acts relating to these forces respectively. It seems that the police department, probably on the assumption that the provision made in section 240 was not applicable to the subordinate ranks of the police service, by reason of what was said in section 243, were working under the rules as reproduced above. Then came the decision by the Federal Court of undivided India in the case of Suraj Narain Anand (A I R 1942 F C 3). It was held that section 243 did not have the effect of depriving members of the subordinate ranks of the police service, of the guarantee contained in section 240, and that the police rules which permitted the dismissal of a person by an authority subordinate to that which appointed him, were repugnant to the Constitution. (This decision was later overruled by the Privy Council but that was several years later A I R 1949 P C 112). As a consequence of this decision, the police rules appear to have been changed. It seems that the requirement of discipline that the officer, under whose control a member of the subordinate ranks of the police was to work, should have the power to remove or dismiss him from service, was regarded as paramount and was not disturbed. Rectification was, therefore, sought to be made at the other end, namely, by empowering the authority that was competent to dismiss, also to make the appointment. This meant that Assistant Sub‑Inspectors and Sub‑Inspectors of Police were now to be appointed by the District Superintendent of Police. Since, however, these two ranks were borne on range rolls, it was apparently not feasible actually to make the appointments on district basis. An arrangement thus seems to have been arrived at which would disturb the actual position in practice as little as possible. This arrangement seems to have been that the range rolls were to be maintained and administered by the Deputy Inspector‑General of Police as before, and that those officers would consequently remain in actual charge of the appointments from these rolls. To satisfy the constitutional requirements, however, the names of the persons to be appointed would be communicated to the Superintendents of Police who would actually make the appointments. With this end in view, the rules seems to have undergone various changes till they now emerge in the shape in which they have been reproduced earlier. It seems that the language of rules 13.9 and 13.10 escaped the attention of the adapters at the time when rules 12.1 and 13.3 were being amended.

11. It is not possible to give effect to rule 13.3 on the one hand and the relevant portion of the provisions of rules 13.9 and, 13.10 on the other, as contended by the learned counsel for the petitioner. The language of each one of these provisions is mandatory. I cannot see how one can reconcile a provision that a thing shall be done by `A' with another provision that the same thing shall be done by `B', by saying that it may be done either by `A' or by `B'. Having regard to the fact that the provisions of rules 13.9 and 13.10 continue to exist in the form in which they existed before the need for amendment arose and that the provisions ‑ of rules 12.1 and 13.3 have been changed in consequence of that need, it is clear that the latter provisions being subsequent and having been specifically altered to meet a new requirement, must be regarded as the more accurate indicators of the intention of the law‑maker and must, therefore, override the former provisions.

12. At the hearing an elaborate argument was addressed as to whether on the admitted facts the appointment in this case should be regarded as having been made by the Deputy Inspector- General of Police or by the Superintendent of Police. The learned counsel for the petitioner placed strong reliance on an earlier case reported as Muhammad Afzal Khan v. Superintendent of Police, District Montgomery (P L D 1961 Lah. 808). In that case the petitioner had been taken as an Assistant Sub‑Inspector on probation by direct recruitment. It was less clear in that case, than it is here, that the real order of appointment had emanated from the Deputy Inspector‑General of Police. The formal order of appointment had been. passed there, as here, by the Superintendent of Police. It was held that the appointment must be regarded as having been made by. the Deputy Inspector‑General of Police. The learned counsel for the respondents relied on the case Zafar Ali v. The State (P L D 1962 S C 321). In that case, the question had arisen whether the person concerned had been appointed by the Chief Engineer or by the Principal of the Engineering School. It was contended that the real person who was giving directions in the matter was the Chief Engineer and the Principal was acting only in obedience to those orders. Having accepted the statement of facts, their Lordships proceeded to say‑ . . . . . . . . . . . This in our opinion is not conclusive for determining the authority that makes the appointment. The Chief Engineer may give directions' to a subordinate of his to make an appointment. If that subordinate has authority otherwise to make that appointment, the appointment will still be deemed to have been made by him and not by the Chief Engineer." The learned counsel for the petitioner pointed out that their Lordships had not laid down that 'an appointment in such circumstances must always be regarded as having been made by the person who was directed to make the appointment but only that the mere fact that directions were given is not conclusive for the purposes of showing that the appointment was not in fact made by the person to whom directions were given. He states that in the case of Sub‑Inspectors and Assistant Sub‑Inspectors of Police, there is not a single instance in which any Superintendent of Police has ever made an appointment otherwise than on directions given by the Deputy Inspector‑General of Police. On this basis he argues that in reality the Superintendents of Police have no power to make appointments, and that on that ground the pronouncement of their Lordships of the Supreme Court is not applicable to the facts of this case. I am prepared to accept the assertion that in practice the Superintendents of Police are not making any appointments otherwise than on the directions given by the Deputy Inspectors‑General of Police because in my view, as explained already, the rolls being integrated in respect of ranges, they can be administered only by the officers incharge of ranges, namely, the Deputy Inspectors‑General of Police.

13. There is, however, another aspect of this matter which does not seem to have been noticed in Muhammad Afzal Khan v. Superintendent of Police, District Montgomery. The amended rule 12.1 derived its authority from clause (b) of subsection (1) of section 241 of the Government of India Act, 1935. Omitting the portions with which we are not concerned, that provision reads: Appointments to the civil service . . . . . (or) civil posts shall . . . . . be made . . . . . by the Governor or such personas he may direct." By rule 12.1 the Governor directed that the appointment to the office of a Sub‑Inspector or of an Assistant Sub‑Inspector of Police may be made by the Superintendent of Police. He did not direct by that or any other rule that the appointment to such an office may be made by any person other than the Superintendent of Police. Section 241 makes it clear that the power to appoint vests in the first place in the Governor himself, and in the second place in any one to whom he may delegate that power. If he delegates it to a Superintendent of Police, it cannot be said that a Deputy Inspector‑General of Police being an officer superior in rank to the Superintendent of Police must automatically be deemed to have been invested with that power. A delegation is only to a delegatee and may not be exercised by persons other than the delegatee. Any one, therefore, who having been appointed after the amendment, contends that his dismissal by a Superintendent of Police is invalid, because he, as a matter of fact, was appointed by a Deputy Inspector‑General of Police, must at the same time also accept the position that his appointment itself was invalid by reason of having been made by a person to whom the power to appoint had not been delegated.

14. The appointment of the petitioner in this case was made subsequent to the amendment. It seems to me, therefore, that if his appointment is regarded as having been made by the Deputy Inspector‑General of Police, the very basis of his complaint would be demolished because he cannot make a grievance of having been removed from a post to which he was never validly appointed. If, on the other hand, the appointment‑is regarded as having been made by the Superintendent of police, the entire substance of the main contention must disappear with that finding.

15. As regards the third of the subsidiary points which is the only one now remaining to be dealt with, the position is this. The punishment proposed was dismissal. The petitioner made an application to the effect that instead of imposing the proposed punishment on him he be allowed to proceed on retirement. In dealing with this plea for clemency made by the petitioner, the Superintendent of Police, in his order stated as follows:‑ "I was inclined to agree (with this prayer) . . . . . but my attention has been invited to the previous record of the defaulter which shows that his integrity was doubted on number of times as below: . . . . . . . . . . . . . . . . . . . . . . . . Therefore, he does not deserve any leniency and in view of the gravity of charges in this case and shabby past of the defaulter, I order his dismissal from service . . . . ." It is clear from this order that it was only a plea for leniency that was repelled on the basis of the past record. Previous record was not taken into consideration for the purposes of inflicting an enhanced punishment. No occasion to give any prior notice could, therefore, have arisen. It was the petitioner himself who put in the plea for leniency and it was in that connection that the previous record was looked at. From the order of the Superintendent of Police it is quite clear that the charges of which he had found the petitioner guilty were themselves regarded by him such as would amply justify the punishment of dismissal of the petitioner.

16. I have deliberated long over the question as to what final order I should propose in this case. The decision given on the question of the dismissal by a Superintendent of Police being invalid, in the case reported as Muhammad Afzal Khan v. Superintendent of Police, District Montgomery would apply with greater force to the facts of this case. When analysed, however, the decision on this point was in fact not necessary for the disposal of that case and does not touch the real ratio decidendi of that case. The petitioner in that case was a probationer. It is expressly provided by rule 12.8 that a probationer shall be discharged by the Inspector‑General of Police in certain cases and by the Deputy Inspector‑General of Police in others. It is possible that this rule also should have been amended but was overlooked like rules 13.9 and 13.10 when the amendments were being made. There does not, however, appear to be any inconsistency between rule 12.8 and any other rule. Nor does the constitutional guarantee get affected because the discharging authority udder rule 12.8 is superior in rank to the appointing authority. There does not, therefore, exist any reason for not giving effect to rule 12.8 as it stands. If, therefore, a probationer is discharged by a person not authorised to do so under rule 12.8, the discharge must be held to be invalid on that ground, even if the authority of a lower rank were held to have made the appointment. It is in fact this that forms the ratio decidendi of that case. If this be so, that decision may be regarded as obiter on this point. But that is not how it is expressed. Being a decision by a Bench of equal status and not having been over ruled by the Supreme Court, I think the best course to follow would be to propose that this case be referred‑to a Bench of a higher status for an authoritative decision. FAIZULLAH, J.‑I agree. Hakim Muhammad Sardar Khan for Petitioner. Ch. Attaullah Sajjad Additional A.‑G. assisted by M. Ihsan‑ul Haq for Respondents. Date of hearing: 6th December 1965. S. A. MAHMOOD, J.--Ahmad Bakhsh petitioner, a confirmed Sub‑Inspector of Police, was dismissed from service by the Superintendent of Police, Multan, by his order, dated the 30th of August 1961, which order he impugned by this writ petition under Article 2(4) of the Laws (Continuance in Force) Order, 1958, and prayed for the issue of a writ of certiorari mandamus or any other appropriate writ, order or direction to quash the said order, and to direct that the said order of dismissal was of no legal effect, so that he still remained in service, entitled to all emoluments, wages, pay and privileges, and a writ of mandamus, prohibition or other appropriate writ to quash the subsequent orders of the Deputy Inspector‑General of Police and Inspector‑General of Police in appeal and revision, refusing to set aside the said order.

2. This writ petition was heard by a Division Bench of this Court and four objections were raised against the legality of the petitioner's dismissal from service, the main contention being that the Superintendent of Police not being the appointing Authority of the petitioner, could not have directed the holding ‑ of an inquiry, the determination of the punishment to be imposed, the issue of the show‑cause notice why punishment of dismissal should not be imposed, and the dismissal of the petitioner from service. The contention that tile Superintendent of Police was not the appointing Authority was supported by the admission in Court of the learned counsel for the respondent that in practice appointments to the post of the Sub‑Inspectors are made by the Deputy Inspector‑General of Police, though the requirement of Police Rules is that they be appointed by Superintendents of Police. There was also admission in the report of the Superintendent of Police, Multan, that the petitioner was promoted to the rank of Sub‑Inspector vide Deputy Inspector -General of Police, Multan Range's Order No. 2552‑57, dated the 2nd of December 1950. The learned Judges assumed in consequence that the petitioner was promoted and confirmed as a Sub‑Inspector of Police under orders which actually emanated from the Deputy Inspector‑General of Police, but were formally promulgated, by the Superintendent of Police, and came to the conclusion, on an examination of the Police Rules, that the appointing Authority in his case was the Superintendent of Police, but as in the case of Muhammad Afzal Khan v. Superintendent of Police, District Montgomery and others (P L D 1961 Lah. 808) a different conclusion had been reached by a Division Bench of equal status, their Lordships considered it advisable to refer the case to a larger Bench for authoritative decision. Hence, this case has come before this Full Bench.

3. The question which falls for determination by us is, who is the appointing Authority in the case of the petitioner, for this is the‑ question referred to us and on its decision rests the fate of the petition.

4. Before dealing with the question before us on the legal plane, we may mention the relevant facts very briefly. The petitioner was recruited as a Foot Constable in the Punjab Police on the Ist of April 1932 and gradually rose by promotion to the rank of a confirmed Sub‑Inspector of Police. He was promoted as Assistant Sub‑Inspector of Police on probation for two years with effect from the 1st of April 1949 and order to this effect was conveyed by the Deputy Inspector‑General of Police, Multan Range, on the 16th of May 1949 to the Superintendent of Police for information and necessary action. He was later confirmed in this rank with effect from the 1st of April 1949 on the Ist of March 1951. His name was entered in List `E' provisionally as an approved candidate for promotion as a Sub‑Inspector of Police by the Deputy Inspector‑General of Police on the 4th of April 1950. By Notification of the Superintendent of Police of Dera Ghazi Khan, dated the 8th of January 1951, he was promoted as officiating Sub‑Inspector of Police with effect from the 1st of January 1951, until further orders in an existing vacancy. An officiating appointment appears to have been made, as under rule 13.10(2) no Assistant Sub‑Inspector shall be confirmed in a substantive vacancy in the rank of Sub‑Inspector, unless he has been tested for at least a year as an officiating Sub‑Inspector. The petitioner claims that he began to officiate as Sub‑Inspector by reason of the order of the Deputy Inspector‑General of Police, Multan Range, dated the 23rd of October 1951, but he has not been able to substantiate that this order was made. The report of the Superintendent of Police, Multan, shows that he was promoted vide order of Deputy Inspector‑General of Police, Multan Range, dated the 2nd of December 1950. We have not seen this order, nor it was notified in the Police Gazette, but it was probably in consequence of this order that the Notification of the Superintendent of Police dated the 8th of January 1951 was issued in the Police Gazette of the 17th of January 1951, appointing him as officiating Sub‑Inspector. The petitioner was placed on two years' probation with effect from the 21st of May 1956 by order of the Deputy Inspector‑General of Police, Multan Range, dated the 22nd . of May 1956, and was confirmed with effect from that date by the Deputy Inspector‑General of Police, Bahawalpur Range, on the 4th of September 1958, but these orders were not notified in the Police Gazette. Substantive promotions to the rank of Sub‑Inspectors are made under rule 13.3(2) of the Police Rules, Volume II. We have taken the, above facts from the personal file of the petitioner. It is in these circumstances that it has to be determined who the appointing Authority of the petitioner is.

5. The petitioner was appointed as officiating Sub‑Inspector while the Government of India Act, 1935, was in force, and clause (b) of subsection (1) of section 241 of the Government of India Act provided that appointments to the civil service and civil posts under the Crown in Pakistan shall be made in the case of services of a Province, by the Governor or such person as he may direct. (Similar provision existed in Article 182(1)(b) of the abro gated Constitution of 1956 and now exists in Article 178(1)(b) of the present Constitution of Islamic Republic of Pakistan). The power to appoint Sub‑Inspectors and Assistant Sub‑Inspectors was delegated under section 241(1)(b) of the' Government of India Act, 1935, to the Superintendents. of Police and Assistant Superintendent, Government Railway Police (who has been equated with the Superintendent of Police in a district and he for the sake of brevity will hereinafter be omitted), as appears from the table summarising the directions of the Provincial Government in rule 12.1, Chapter XII, Volume II of the Punjab Police Rules. Thus, the designated authority alone as delegatee can exercise the power to appoint in their‑ case, and no one else, not even a higher authority can exercise that power. The consequence is that if in a particular case the Deputy Inspector‑General of Police initiates an appointment or gives a direction or order to appoint a Sub‑Inspector or an Assistant Sub‑Inspector of Police to a Superintendent of Police, his order cannot be availed of by anyone as a valid order of appointment, for it has no legal sanction or lawful authority behind it. It can at best be treated as a recommendation by the Deputy Inspector‑General of Police to the proper appointing authority, namely, the Superintendent of Police, to appoint him as being a suitable person to be appointed, and if he makes the appointment, his is the valid order of appointment under the Police Rules read with the Constitutional provision. Without his order, which has to be notified in the Police Gazette through the Deputy Inspector --General of Police under the Police Rules, there is no valid order of appointment as Sub‑Inspector or Assistant Sub‑Inspector of Police.

6. Chapter XII of the Police Rules deals with appointments and enrolment of various police officers, namely, Assistant Superintendent of Police, Deputy Superintendent df Police, Inspectors, Prosecuting Sub‑Inspectors, Sub‑Inspectors, Sergeants, Assistant Sub‑Inspectors, Head Constables and Constables. We are concerned with the case of a Sub‑Inspector of Police, but it is necessary to point out that Police Rule 12.3, Volume II, provides that direct appointments are not made, except in the rank of Inspector, Prosecuting Sub‑Inspector and Assistant Sub‑Inspector (except for Police Rule 12.1, i.e., of Assistant Superintendents of Police and Deputy Superintendents of Police and 12.4, i.e., of Sergeants). Thus, the Police Rules do not contemplate appointment of Sub‑Inspectors (except that Police Rule 12.8 fixes a period of probation for several classes of police officers including Sub‑Inspectors) and in fact a Sub -Inspector of Police is not now directly appointed. He is promoted from List `E', which contains the names of approved Assistant Sub‑Inspectors of Police maintained under Police Rule 13.10 and published under Police Rule 13.11 by the Deputy Inspector‑General of Police. Assistant Sub‑Inspectors of Police are either directly appointed from a list of accepted candidates maintained by the Deputy Inspector‑General of Police under Police Rule 12.7, or are promoted in officiating capacity under Police Rule 13.4(2) from List `D' of approved Head Constables maintained by the Deputy Inspector‑General of Police under Police Rule 13.9. Officiating promotions to the rank of Sub -Inspectors and Assistant Sub‑Inspectors under sub‑rule (2) of rule 13.4 shall be made by Superintendents of Police, and if the flow of promotion is unevenly distributed among Districts, the Deputy Inspector‑General of Police shall make suitable transfers of Assistant Sub‑Inspectors and Head Constables on the promotion lists from one District to another. Under its sub rule (3) promotions concerning upper subordinates made under this rule, shall be published in the Police Gazette, and Notifications by Superintendent shall be sent in through the Deputy Inspector‑General, who shall have. the power to revise such orders on recording reasons in each case. Substantive promotions to the rank of Sub‑Inspector and Assistant Sub Inspector shall be made under rule 13.3(2) by the Superintendents of Police, and the Deputy Inspectors‑General of the Ranges, who maintain promotion lists `D' and `E' for these two ranks in the case of District Police; will notify the Superintendent of Police of a District, when a vacancy in either rank is to be filled by an officer in his District.

7. Thus, officiating promotion to the rank of Sub‑Inspector is made under rule 13.4(2) and substantive promotion under rule 13.3(2) of the Police Rules, Volume II but in either case the promotion is by the Superintendent of Police and not by the Deputy Inspector‑General of Police. Now under the Police Rules, a Sub‑Inspector of Police is not directly appointed, but is appointed by promotion, and therefore, whether we treat him as appointed or promoted as Sub‑Inspector, the power to appoint or promote vests in a Superintendent of Police under the delegated or conferred authority. Since a Sub‑Inspector is not directly appointed, as appears from Police Rule 12.3, it has to be inferred that the delegated power of appointment under section 241(1)(b), Government of India Act, 1935, refers to appointment of a Sub‑Inspector by promotion, and it should be remembered that we are out to find who the appointing Authority is.

8. The petitioner was first appointed in an officiating capacity and then in a substantive capacity. In the officiating capacity the order of appointment, though emanating from the Deputy Inspector‑General of Police, was notified in the Police Gazette, as required by Police Rule 13.4(3), as ordered by and under the authority of the Superintendent of Police. With regard to his substantive appointment, the notified order has not been placed before us, but in .view of Police Rules 13.3(2) and 13.4(3) such a notification must have been issued under the authority of the Superintendent of Police. In either case, Police Rules 13.4(2) and 13.3(2) direct that substantive and officiating promotions to the rank of Sub‑Inspector shall be made by the Superintendent of Police, and if along with these rules is borne in mind that it is the Superintendent of Police, who is delegated the power to appoint Sub‑Inspectors, the only conclusion to which we can reach is that the Superintendent of Police and not the Deputy Inspector‑General of Police is the appointing Authority. The learned Judges of the Supreme Court in the case of S. Qamar Ali Shah v. The State (P L D 1965 S C 50), a case of promotion of an Assistant Sub‑Inspector, by order of a Deputy Inspector‑General, but whose officiating promotion was notified in the Police Gazette under the authority of the Superintendent of Police, relying on Police Rule 13.4(2), repelled the contention that the appointing Authority was the Deputy Inspector‑General of Police, and held as follow:- "Reference to rule 13.4(2), however, puts the matter beyond doubt. It clearly mentions that officiating promotions to the ranks of Sub‑Inspectors and Assistant Sub‑Inspectors shall be made by Superintendents of Police and Assistant Superintendent, Government Railway Police, who is, in this respect regarded as equivalent to a Superintendent of Police in a District. There is consequently no room for arguments on the basis .of the Police Rules that the appointing Authority in the case of an officiating promotion of a Head. Constable to the post of an A. S.I. is the D. I. G. The rules contemplate such an appointment being made by a Superintendent of Police in the district concerned."

9. Police Rule 13.4(2) has application equally to Sub-Inspectors of Police, as appears also from the above and the case of the petitioner falls within the ambit of this rule so that as far as his officiating appointment is concerned, there can be no two opinions, in view of the above decision, that the appointing Authority is the Superintendent of Police. It may be pointed out that this conclusion ‑was reached by the learned Judges of the Supreme Court, without their Lordships being referred to the fact that the power to appoint Assistant Sub‑Inspectors and Sub-Inspectors stands delegated by the Provincial Government to the Superintendent of Police and the Assistant Superintendent, Government Railway Police. With regard to his substantive promotion the position is the same, since under Police Rule 13.3(2) substantive promotion to the rank of a Sub‑Inspector shall be made by the Superintendent of Police and the Assistant Superintendent, Government Railway Police. This provision is in this respect similar to rule 13.4(2). Thus, even if the case of the petitioner is treated as a pure and simple case of promotion, the conclusion must be the same that the appointing Authority in his case is the Superintendent of Police.

10. The learned counsel for the petitioner relied before us on the following words occurring in Police Rule 13.10(1) which have been underlined though the relevant portion has been stated in full, so that its full meaning can be comprehended:‑ "Officiating promotions of short duration shall ordinarily be made within the District concerned (vide sub‑rule 13.4(2)),' but vacancies of long duration may be filled by the promotion of any eligible man in the Range at the discretion of the Deputy Inspector‑General." The words underlined show that vacancies of Sub‑Inspectors of long duration, i.e., substantive vacancies, may be filled by promotion at the discretion of the Deputy Inspector‑General, but this provision is inconsistent with Police Rule 13.3(2), which directs that substantive promotions to the rank of Sub‑Inspectors and Assistant Sub‑Inspectors shall be made by Superintendent of Police and the Assistant Superintendent, Government Railway Police`. Whereas in rule 13.3(2) the direction is mandatory, in rule 13.10(1) the Deputy Inspector‑General may fill a vacancy by promotion. It is not possible to reconcile the two Police Rules so far as appointments of Sub‑Inspectors are concerned, because rule 13.3(2) having directed that the appointment shall be made, by a Superintendent of Police, how can it be provided in another rule, namely, 13.100) that it may be made by a Deputy Inspector‑General, and in the result the conclusion reached that either one or the other or both may make the appointment.

11. It appears to us that the words underlined in Police Rule 13.100) have remained in that rule and have not been omitted or deleted by oversight. Those words were there in the Police Rule when in Police Rules 13.3(2) and 13.4(2) the appointing Authority was the Inspector‑General of Police in the case of direct appointment of Sub‑Inspectors, and Deputy Inspector General of Police in other cases. At that time, though the appointing Authority was the Inspector‑General of Police or the Deputy Inspector‑General of Police the removing Authority was the Superintendent of Police, and it could be so provided, because of section. 243, Government of India Act, 1935, which enacted that notwithstanding anything in the foregoing provisions of the Chapter the conditions of service of the subordinate ranks of the various police officers shall be such as may be determined by or under the Acts relating to those forces respectively. Then came the decision of the Federal Court of undivided India in the case of Suraj Narain Anand v. The North‑West Frontier Province (A I R 1942 F C 3) holding that section 243 did not have the effect of depriving members of the subordinate ranks of the police service, of the guarantee contained in section 240 and that Police Rules which permitted the dismissal of a person by an authority subordinate to that which appointed him, was repugnant to the Constitution. This decision was later overruled by the Privy Council in the same case reported as A I R 1949 P C 112, but as a consequence of the decision of the Federal Court the Police rules appear to have undergone a change, and with a view to make the appointing Authority and the dismissing Authority the same, the appointing Authority was altered and made the Superintendent of Police and the Assistant Superintendent, Government Railway Police, in rules 13.3(2) and 13.4(2), leaving the removing Authority the same as before. It was apparently thought more important that the dismissing authority should remain the Superintendent of Police under whose direct control and supervision Sub‑Inspectors and Assistant Sub‑Inspectors functioned. Since, however, these two ranks of police officers were borne on Range Rolls, it was considered desirable to leave the preparation of the approved lists in the hands of the Deputy Inspectors‑General (who did not thereby become the appointing Authority) but what is important for our purposes is that the Superintendent of Police was expressly brought in as the appointing Authority, and with him being the dismissing authority, the Deputy Inspector‑General could not be left under the rules the power of appointment of Sub‑Inspectors and Assistant Sub‑Inspectors. Therefore, when rules 13.3(2) and 13.4(2) were both amended to provide in mandatory terms that the Superintendent of Police shall be the appointing Authority in the case of officiating and substantive promotions, no scope was left‑for any other Authority to be the promoting Authority. Therefore, we are firmly of the view that the underlined words in rule 13.10 remain in the rule by oversight, and being inconsistent with the two rules, as subsequently amended, must be deemed to have been overridden if not repealed by necessary implication and intendment. In any case the Deputy Inspector‑General of Police not having been delegated the power of appointment, the provision in rule 13.10(1) enabling him to fill a vacancy does not confer on him valid authority to make an appointment, although the Police Rules have been frame under sections 7 and 12 of Police Act, V of 1861, but these sections do not include in their purview the subject of appointment of police officers. The power of their appointment is in the Provincial Government, which has been delegated, as mentioned already, to Superintendents of Police.

12. Attention has already been drawn to Police Rules 13.3(2) and 13.4(2) relating to promotions of Sub‑Inspectors. These rules are in accord with the table in Police Rule 12.1, which contains mention of the delegation of power to the Superintendents of Police and are also in accord with Police Rule 16.1(2), whereby Superintendents of Police and Assistant Superintendent, Government Railway Police, are authorised to dismiss Sub-Inspectors and Assistant Sub‑Inspectors of Police whom they can only dismiss by reason of Article 177 of the Constitution, if they (and not Deputy Inspectors‑General) are appointing authority. The underlined words of Police Rule 13.10 are in conflict with these rules and as the Deputy Inspector‑General lacks delegation of power to appoint Sub‑Inspectors, he cannot act as appointing Authority.

13. Since the Deputy Inspector‑General of Police purported to appoint the petitioner in officiating as well as substantive capacity and confirmed him, it is argued on his behalf that the actual appointment having in ‑fact been made by the Deputy Inspector‑General of Police, he is the appointing Authority, and it is he who should have dismissed the petitioner and notifications in the Police Gazette by the Superintendent of Police, which may have been issued, were a mere formality. The learned Judges of the Supreme Court in S. Qamar Ali Shah v. The State repelled a similar contention, observing as follows:‑ "As has been brought out, all promotions concerning upper subordinates made under rule 13.4, have to be published in the Police Gazette and the Notifications have to be by the Superintendent of Police. Such Notification is required to be sent through the D. I. G., however, who has a revisional power of interference with the appointments made, for reasons to be recorded. It is also understandable why this supervisory power should vest in the D. I. G., as this would ensure a uniform rate of promotions among subordinate police officers in the various districts of the range under his control. It is because of this aspect of the matter that the rules apparently provide that the list of those Head Constables who are to be regarded an eligible for promotion to the next higher post, requires the approval ‑ of the D. I. G. The power of appointment, nevertheless, vests, in this regard, in the S. P. alone, though he is confined to the list of eligibles approved by the D. I. G. The D. I. G.'s `order' appears to have employed some loose language in declaring that the officers named therein were promoted to officiate as S. Is. and A. S. Is. The correct position was that they were being recommended for appointment to the various S. Ps. who alone were competent to issue the necessary notifications in the Police Gazette. The order of D. I. G. was never published in the Police Gazette whereas all promotions concerning upper subordinates are required to be published therein by virtue of sub‑rule (3) of rule 13.4. The position that emerges is, therefore, that the rules only contemplate such officiating appointments to the post of A. S. Is., by the S. P., though as a superior officer the D. I. G., might advise them on the question of suitability of the candidates and it is difficult to sustain the preposition that the appointment in the present case had been, in fact, made by the D. I. G." The above observations fully meet the argument raised on behalf of the petitioner. Besides, if the Deputy Inspector‑General is the appointing Authority of the petitioner, then the petitioner cannot claim to have been validly appointed by an authority, who is competent to appoint him, as having been delegated the authority to appoint.

14. It has not been urged before us that because List `K' is approved by the Deputy Inspector‑General, the petitioner's appointment should be deemed to have been made by the Deputy Inspector‑General, as was argued in case of Muhammad Afzal Khan, referred to above, who was in fact directly appointed as Assistant Sub‑Inspector. This aspect of the case was expressly dissented from and then overruled by the learned Judges of the Supreme Court in S. Qamar Ali Shah v. The State. Their Lordships observed as follows:‑ "That case related to appointment as a direct recruit of an A. S. I. in a substantive capacity and the facts of the case are, therefore, distinguishable from those of the instant case. If, however, the ruling was intended to lay down that in circumstances similar to those prevailing under the relevant rules in this case, the prior approval of a candidate for promotion by the higher officer, entailed the consequence that the higher officer also became part of the appointing authority, then we must respectfully dissent from that view." Therefore, it is not necessary to deal at any considerable length with the case of Muhammad Afzal Khan v. Superintendent of Police, District Montgomery, because of which the Division Bench made a reference of this case to a larger Bench.

15. It is true that in practice the Deputy Inspectors‑General of Police appear to make appointments of Sub‑Inspectors and Assistant Sub‑Inspectors of Police, and their orders are so worded, as if they are appointing authorities. With regard to an order of similar nature in the case of S. Qamar Ali Shah v. The State, the learned Judges of the Supreme Court observed that the position of the higher authority (D. I. G.) in that case seemed to be more akin to that of a Public Service Commission, who had to make a selection of a suitable candidate for appointment to a post, but the power of appointment has to be exercised by the competent Authority or. by Government. This is precisely the position in the present case also, and we have no hesitation in holding that the Deputy Inspector‑General of Police is not the competent appointing Authority.

16. We would like to point out that instructions need to be issued to the Deputy Inspectors‑General of Police that though they might act in advisory capacity like the Public Service, Commission, they ought to avoid phrasing their orders as if then were appointing Authority for Sub‑Inspectors and Assistant Sub- Inspectors of Police, for they possess no such authority. Ws would also like to bring it to the notice of the authorities that is the Police Rules there are several inconsistencies, of which we have drawn attention to one, namely, a portion of Police Rule 13.10 but there are others also, and these have to be corrected. The Police Rules need, therefore, to be revised.

17. For the reasons given above, we hold that the appointing Authority in the case of the petitioner is the Superintendent of Police, and there is no merit in the allied questions which remain to be decided in this writ petition, which is accordingly dismissed, but as inconsistencies exist in the Police Rules, we leave the parties to bear their own costs. A. H. Petition dismissed.