Amit Arora And Another v. State Of Punjab And Others





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,0  !  I have heard arguments of both sides and scrutinized the record with their able assistance.

11.

The claim of the petitioners is that promotion of Police Officials is governed by Punjab Police Rules and they cannot be subjected to 1994 General Rules. Chapter 13 of the 1934 Rules deals with promotion starting from the post of Constable to the post of Inspector. The petitioners are claiming promotion from the post of Constable to Head Constable and Rule 13.8 deals with promotion to the post of Head Constable. For the ready reference Rule 13.8 is reproduced as below: "13.8 List C. Promotion to head constables.

(1) In each district a list shall be maintained in card index from (Form 13.8 (1) of all constable who have passed the Lower School Course at Phillaur and are considered eligible for promotion to Head Constable. A card shall be prepared for each constable admitted to the list and shall contain his marking under sub-rule 13.5 (2) and notes by the Superintendent himself, or furnished by Gazetted Officers under whom the constable has worked, on his qualifications and character. The list shall be kept confidentially by the Superintendent and shall be scrutinized and approved by the Deputy Inspector-General of Police at his annual inspection.

(2) Promotions to Head Constables shall be made in

accordance with the principle described in sub- Rules 13.1

(1) and (2). The date of admission to List C shall not be material, but the order of merit in which examinations have been passed shall be taken into consideration in comparing qualifications. In cases where other qualifications are equal, seniority in the police force shall be deciding factor. Selection grade constables who have not passed the Lower School Course at the Police Training School but are otherwise considered suitable may, with the approval of the Deputy Inspector-General, be promoted to Head Constable up to a maximum of ten percent of vacancies." From the perusal of above quoted rule, it is evident that jurisdictional authorities are required to maintain, at District level, a register of all Constables who have passed Lower School Course and are eligible for promotion to the post of Head Constable.

The Rule prescribes conditions which a Constable has to comply with for promotion to the post of Head Constable. It further prescribes mechanism of promotion as soon as a candidate becomes eligible. In this way, Rule 13.8 prescribes mode, manner and procedure of promotion from the post of Constable to Head Constable. The rule does not deal with a situation which arises on account of refusal by an employee to accept promotion. On compliance of essential conditions, an employee becomes eligible to promotion. He is promoted as soon as vacancy arises. The authorities as per applicable rules are bound to promote an employee, however, no authority can compel an employee to accept promotion. There may be so many reasons for denial of promotion e.g. there are various Departments where promotion entails transfer from the present place of posting.

Many employees do not prefer to leave their station and they deny promotion.

The Punjab Police Rules are silent to advert with the situation but 1994 Rules, which are applicable to all Government employees who are under the administrative control of the Punjab Government and whose pay is debit-able to the consolidated fund of the State of Punjab, advert with this situation. Punjab Police Officers are under the administrative control of Punjab Government and their pay is debit-able to the consolidated fund of the State of Punjab.

12.

Rule 1.2 of the 1994 Rules provides that these rules shall be applicable to Class A, B, C & D employees. The relevant extracts of the said Rule for the ready reference are reproduced as below: 1.2

(1) Except as otherwise provided in rule 1.4 infra or in any other rule or rules these rules shall apply to all Government employees belonging to the categories mentioned below, who are under the administrative control of the Punjab Government and whose pay is debit-able to the Consolidated Fund of the State of Punjab: -

(1) Members of State Services, Group "A" and Group "B";

(2) Members of State Services, Group "C";

(3) Members of State Services, Group "D";

(4) Holders of Special Posts; and

(5) any other Government employee or class of Government employees to whom the competent authority may, by general or special order, make them applicable:, ! 7 ,--0)
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  9.

There will be complete harmony however if we hold instead that clause 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of clause 23. We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority.

The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and Judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty v. Solly (quoted in Craies on Statute Law at p.m. 206, 6th Edn.) Romilly, M.R.

tioned the rule thus:"The rule is, that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply". The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned : De Winton v. Brecon [28 LJ Ch 598], Churchill v. Crease [5 Bing 177], United States v. Chase [135 US 255] and Carroll v. Greenwich Ins. Co. [199 US 401].

10. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the special provision, we must hold that clause 5(a) has no application in a case where the special provisions of clause 23 are applicable.

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24. The judgment in Kulwant Kaur case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] raised a question which arose on an application of Section 41 of the Punjab Courts Act, 1918. This section was couched in language similar to Section 100 of the Code of Civil Procedure as it existed before the Code of Civil Procedure (Amendment) Act, 1976, which amended Section 100 to make it more restrictive so that a second appeal could only be filed if there was a substantial question of law involved in the matter. The question this Court posed before itself was whether Section 41 stood repealed by virtue of Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976, which reads as under: (SCC p. 270, para 10) "97. Repeal and savings.-(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except insofar as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed."

This Court concluded that Section 41 of the Punjab Courts Act was repealed because it would amount to an amendment made or provision inserted in the principal Act by a State Legislature. This Court further held that, in any event, Section 41 of the Punjab Courts Act being a law made by the Legislature of a State is repugnant to a later law made by Parliament, namely, Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976, and that therefore, by virtue of the operation of Article 254 of the Constitution of India, the said provision is in any case overridden. In arriving at the aforesaid two conclusions, this Court held [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] : (SCC p. 276, paras 27-29)



"27. Now we proceed to examine Section 97(1) of the Amendment Act and the amendment of Section 100 CPC by the said 1976 Act. Through this amendment, right to second appeal stands further restricted only to lie where, 'the case involves a substantial question of law'. This introduction definitely is in conflict with Section 41 of the Punjab Act which was in pari materia with unamended Section 100 CPC. Thus, so long there was no specific provision to the contrary in this Code, Section 4 CPC saved special or local law. But after it comes in conflict, Section 4 CPC would not save, on the contrary its language implied would make such special or local law inapplicable. We may examine now the submission for the respondent based on the language of Section 100(1) CPC even after the said amendment. The reliance is on the following words:

'100. Second appeal.-(1) Save as otherwise expressly provided by any other law for the time being in force....'

These words existed even prior to the amendment and are unaffected by the amendment. Thus, so far it could legitimately be submitted that, reading this part of the section in isolation it saves the local law. But this has to be read with Section 97(1) of the Amendment Act, which reads:

'97. Repeal and savings.-(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except insofar as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.' (Noticed again for convenience.)

28. Thus, language of Section 97(1) of the Amendment Act clearly spells out that any local law which can be termed to be inconsistent perishes, but if it is not so, the local law would continue to occupy its field.

29. Since Section 41 of the Punjab Act is expressly in conflict with the amending law viz. Section 100 as amended, it would be deemed to have been repealed. Thus, we have no hesitation to hold that the law declared by the Full Bench of the High Court in Ganpat [Ganpat v. Ram Devi, 1977 SCC OnLine P&H 188: AIR 1978 P&H 137 : (1978) 80 PLR 1] cannot be sustained and is thus overruled."

25. We are afraid that this judgment in Kulwant Kaur case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] does not state the law correctly on both propositions. First and foremost, when Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 speaks of any amendment made or any provision inserted in the principal Act by virtue of a State Legislature or a High Court, the said section refers only to amendments made and/or provisions inserted in the Code of Civil Procedure itself and not elsewhere. This is clear from the expression "principal Act" occurring in Section 97(1).

What Section 97(1) really does is to state that where a State Legislature makes an amendment in the Code of Civil Procedure, which amendment will apply only within the four corners of the State, being made under Schedule VII List III Entry 13 to the Constitution of India, such amendment shall stand repealed if it is inconsistent with the provisions of the principal Act as amended by the Parliamentary enactment contained in the 1976 Amendment to the Code of Civil Procedure. This is further made clear by the reference in Section 97(1) to a High Court.

which High Courts may make rules regulating their own procedure, and the procedure of civil courts subject to their superintendence, and may by such rules annul, alter, or add to any of the rules contained in the First Schedule to the Code of Civil Procedure.

26. Thus, Kulwant Kaur [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] decision on the application of Section 97(1) of the Code of Civil Procedure (Amendment) Act, is not correct in law.

27. Even the reference to Article 254 of the Constitution was not correctly made by this Court in the said decision in Kulwant Kaur case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262]. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature under Section 80-A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof.

In turn, after the Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case, Article 254 of the Constitution of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent legislature or other competent authority.



Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force. Shri Viswanathan's reliance upon this authority, therefore, does not lead his argument any further. 17.

In the case in hand, this Court from the perusal of chapter 13 of Punjab Police Rules especially Rule 13.8 does not find any inconsistency between 1934 Rules and 1994 Rules. An employee is appointed against a contract but as soon as he is appointed, he holds a post and is governed by statutory provisions made by competent legislature. The 1994 Rules have been made by Governor in exercise of power conferred by proviso to Article 309 of the Constitution of India. It is apt to notice here that Rules made by Governor in exercise of power conferred by Article 309 are not a piece of delegated legislation but a piece of plenary legislation. An employee holding a post can be subjected to any statutory provision made by the competent legislature unless and until said provision is declared ultra-vires.

There is no challenge to 1994 Rules, thus, petitioners being employees of State Government cannot claim that they cannot be subjected to 1994 Rules. This Court does not find any contradiction between 1994 Rules and 1934 Rules, thus, claim of the petitioners that their promotion is governed by Rule 13.8 of 1934 Rules and they cannot be subjected to Rule 18.2 of 1994 Rules is misplaced and misconceived. The contention of petitioners deserves to be ignored.

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  4.

There is another aspect of the matter. The special provisions governing the police force are contained in the Punjab Police Rules. In respect of matters regarding which no provision has been made in the Police Rules, the members of the force like the other employees working in connection with the affairs of the State are governed by the provisions contained in the Punjab Civil Services Rules. Rule 1.2 of these rules specifically provides that the provisions of the Punjab Civil Services Rules apply to the government employees who are under the "administrative control of the Punjab Government and whose pay is debitable to the Consolidated Fund of the State of Punjab". Rule 2.

35 of these rules defines 'lien' to mean "the title of a government employee to hold substantively, either immediately or on the termination of a period of absence, a permanent post, including a tenure post, to which he has been appointed substantively". Furthermore, provisions have been made in Chapter III (Rules 3.11 to 3.17) to inter alia protect the rights of a person who has been substantively appointed to a post. In Rule 3.

ated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post." Thus, an employee who has been confirmed on a post and has acquired a lien thereto, cannot be deprived thereof even with his consent. In other words, once an employee is confirmed, he acquires a lien. This lien shall be maintained and he shall not be deprived thereof even with his consent till he acquires a lien in accordance with the rules on another post. 5.

Thus, on a perusal of the rules, it appears that a person who holds a post substantively acquires a lien. The benefits which ensure by virtue of this lien cannot be taken away by the unilateral act of transfer. This view is also supported by precedent. An almost similar question had come up for consideration before a learned Single Judge of this Court (Jawahar Lal Gupta, J.) in Kartar Singh v. State of Punjab, CWP No. 15009 of 1993, which was decided on June 2, 1994. The learned Judge had inter alia held that the petitioners having not been confirmed in the District Police had retained their lien in the Armed Police. They were, thus, to be deemed to have continued and their rights for promotion were thus, protected. Similarly, in Gursewak Singh v. State of Punjab, CWP No. 10910 of 1995, T.H.B. Chalapathi, J.

speaking for the Bench, had observed that "when the petitioner was transferred from one unit to another unit, his rights in his parent unit cannot be taken away and they have to be protected. When the juniors working in the Punjab Armed Police are deputed for Upper School Course, the said benefit cannot be denied to the petitioner as the petitioner continues to be on the rolls of the Punjab Armed Police on notional basis though his services have been transferred or deputed to the District Police, Patiala". We affirm the view taken in these two decisions.

6.

In view of the above, we answer the question posed at the outset as follows:



The unilateral act of transfer by the department of a member of the Police Force from one cadre to another cannot affect his seniority or right to be considered for being deputed for the course or promotion.

7.

What is the position in the present case? The petitioner had admittedly joined the Punjab Armed Police in the year 1981. He had acquired a lien in the cadre when he was transferred to the District Police in March 1994. His lien was never terminated.

8.

Thus, his rights in the parent cadre were duly protected. Still further, the Division Bench had, by an interim order, directed that the petitioner shall be allowed to attend the Upper School Course. During the pendency of the case, the petitioner has already completed the course. In view of the above, the writ petition is allowed. The petitioner shall be entitled to the benefits which may become due to him on account of retention of his lien in the Punjab Armed Police. !" 3

 
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