Yogender
Pal Singh & Ors Vs. Union of India & Ors [1987] INSC 23 (23 January 1987)
Venkataramiah,
E.S. (J) Venkataramiah, E.S. (J) Singh, K.N. (J)
CITATION:
1987 AIR 1015 1987 SCR (2) 49 1987 SCC (1) 631 JT 1987 (1) 227 1987 SCALE
(1)175
ACT:
Punjab Police Rules, 1934, Rule 12.14. (3)
constitutional validity of--Authorising the grant of preference of appointment
in favour of sons and near relatives of persons serving in the police service,
whether--Constitutional--Constitution of India, 1950, Articles 16(2) and
Article 14(1).
HEAD NOTE:
Delhi
Police (Appointment and Recruitment) Rules, 1980, Whether supersedes the
earlier Punjab Police Rules, 1934, though it is deemed to be in force by virtue
of section 149(2) of the Delhi Police Act, 1978--Construction of a New law.
Delhi
Police Act, 1978, sections 147 and 149--Scope and effect of, explained--Rules
30 and 32 of the 1980 Police Rules.
The
Delhi Police Act, 1978 (Act 34/78) which came into force with effect from 1.7.
1978 by virtue of section 149 thereof repealed the earlier Act of 1861.
However, the first proviso to section 149(1) provided that all rules and
standing Orders (including the Punjab Police Rules, as in force in Delhi) made
under the Police Act, 1861 would be in so far as they were consistent with the
Act may be deemed to have been respectively made under the Act. Consequently
the said 1934 Rules continued to be in force even after the commencement of the
Act. By virtue of the authority vested under section 147(2)(a) of the 1978 Act,
the Lt. Governor of Delhi promulgated the Delhi Police
(Appointment and Recruitment) Rules, 1980. The said Rules which came into
effect from 31.12.80 were amended twice--in 1983 and 1985. By the newly added
Rule 32 on 2.5.83, all provisions contained in the Punjab Police Rules as
applicable to the Union Territory of Delhi were repealed. While under the
earlier Rule 12.14.(3) of the Punjab Police Rules, sons and near relatives of
persons who have done good service in Punjab Police or in the Army had
preference in recruitment, under the new Rule 9(vi)(d)(ii) relaxation of the
age limit alone was provided for "for sons of police personnel who die in
service".
Despite
this Rule position, the Deputy Commissioner of Police Headquarters (I), Delhi, by his order dt.3. 10.81, relaxed
the rules relating to the qualifications in favour of the sons or wards of
Delhi 50 Policemen upto the limit of 71/2% of the total selection.
Accordingly
the police authorities in charge of the selection of candidates recommended 259
candidates out of a total of 420 candidates who came within the category of
wards of Policemen/Class IV employees to the Delhi Administration for seeking
approval of the competent authority.
All
the 23 appellants were eligible to be considered for the appointment as
Constables in the light of the order of relaxation dated 3.10.81, but even they
were not sent up for training which they had to undergo before the appointment
because six of them were found to be ineligible since their brothers had
already been recruited in the Police Department by relaxing the rules of
appointment in their favour. 15 of them were refused permission to join the
training course on the ground that the Administrator (Lt. Governor of Union territory of Delhi) had not relaxed the qualifications in their cases. Two of
them, however, had in fact received a letter stating that the Administrator
(Lt. Governor of the Union territory of Delhi) had accorded sanction for
relaxation for recruitment in their cases and they could join the training
course with effect from 15.6. 1982 but later on they were also denied admission
into the Police force because their brothers had been recruited earlier in the
Delhi Police service after according relaxation. The order of relaxation in
their favour had, therefore, been withdrawn.
The
appellants who were thus aggrieved by the denial of admission into the service
preferred the writ petition in the High Court for the issue of writ of mandamus
to the Delhi Administration to appoint them as Constables on the ground that
they satisfied the qualifications prescribed by the rules read with the order
of relaxation dated 3.10.1981.
A
learned Single Judge of the Delhi High Court allowed the writ petition and held
that the Punjab Police Rules, 1934 continued to remain in force even after the
promulgation of the Rules which came into force on 31.12.1980 and the cases of
the appellants were protected by the relaxation order dated 3.10.1981 issued by
the Deputy Commissioner of Police and the fact that any of the brothers of the appellants
had been appointed earlier under the cover of similar order of relaxation did
not disentitle the appellants to claim the benefit of the order of relaxation.
Aggrieved
by the said decision, the Union of India and the Delhi Administration flied a
Letters Patent Appeal. The appeal was allowed holding; (a) that on the
promulgation of the Rules with effect from 31.12.1980, rule 12.14.(3) of the
Punjab Police Rules, 1934 which dealt with the subject of appointment of
Constables stood repealed; (b) that under Rule 30 of the Rules the power to
relax the Rules in appropriate 51 cases having been vested with the
Administrator. (Lt. Governor of the Union territory of Delhi) the order of
relaxation issued by the Deputy Commissioner of Police on 3.10.1981 did not
give any right to the appellants for enlistment as Constables unless relaxation
was granted by the competent authority i.e. the Administrator (Lt. Governor of
the Union territory of Delhi) and the mere fact that a candidate was successful
in the test by itself would not give him a right to enlistment; (c) that since
by its letter dated April 3, 1982 the Delhi Administration had decided that
only one son of a police officer would be considered for grant of such
relaxation the appellants whose brothers had already been employed in the
police service on the basis of an earlier order of relaxation were not entitled
to be recruited by relaxing the Rules once again. Hence the appeal by special
leave.
Dismissing
the appeal, the Court,
HELD:
1. 1 The claim made by the appellants for the relaxation of the Rules in their
cases only because they happen to be the wards or children or relatives of the
police officers has got to be negatived since their claim is based on 'descent'
only and others will thereby be discriminated against as they do not happen to
be the sons of police officers. Any preference shown in the matter of public
employment on the ground of descent only has to be declared as
unconstitutional. [65F-G]
1.2
While it may be permissible to appoint a person who is the son of a police
officer who dies in service or who is incapacitated while rendering service in
the Police Department, a provision which confers a preferential right to
appointment on the children or wards or other relatives of the police officers
either in service or retired merely because they happen to be the children or
wards or other relatives of such police officers would be contrary to Article
16 of the Constitution. Opportunity to get into public service should
be extended to all the citizens equally and should not be confined to any
extent to the descendants or relatives of a person already in the service of
the State or who has retired from the service. [64B-D] Gazula Dasaratha Rama Rao
v. The State of Andhra
Pradesh
2.1 It
is well settled that when a competent authority makes a new law which is
totally inconsistent with the earlier law and that the two cannot stand
together any longer it must be construed that the earlier law had been repealed
by necessary implication by the later law. Apply52 ing the above test it has to
be held in this case that rule 12.14 and rule of the Punjab Police Rules, 1934
stood repealed with effect from December 31, 1980 and rule 32 of the Rules which was introduced by way of
amendment on May 2,
1983 had not the
effect reviving rule 12.14 and rule 12.. 15 of the Punjab Police Rules, 1934
and Keeping them alive beyond December 31, 1980
upto May 2, 1983. [63A-C]
2.2
Rule 32 of the Delhi Police (Appointment and Recruitment) Rules, 1980 had been
introduced by way of abundant caution, although in fact the Punjab Police
Rules, 1934 ceased to be in force on 31. 12. 1980 and the mere addition of Rule
32 did not have the effect of keeping the 1934 Rules alive after 31.12.80.
[62D-E]
2.3
Section 149(2) of the Delhi Police Act no doubt provided that the rules framed
under the Police Act of 1861 would continue to be in force after the Act came
into force in so far as they were consistent with the Act but at the same time
section 147 of the Act authorised the Administrator (Lt. Governor of the Union
territory of Delhi) to make rules regarding recruitment to, and the pay,
allowances and all other conditions of service of the members of the Delhi
Police under clause (b) of section 5. It is not disputed that rule 12.14 and
rule 12.15 of the Punjab Police Rules, 1934 and the rules promulgated on December 31, 1980 dealt with the identical subject,
namely, the appointment and recruitment of Constables to the Delhi Police
service.
Therefore,
on the promulgation of the Rules on December 31, 1980 which covered the subject
dealt with by rule 12.14 and rule 12.15 of the Punjab Police Rules, 1934 had
the effect of repealing by necessary implication rule 1,2.14 and rule 12.15 of
the Punjab Police Rules, 1934 even though initially there was no express
provision in the Rules to the effect that rule 12.14 and rule 12.15 of the
Punjab Police Rules, 1934 stood repealed with effect from December 31, 1980.
[62D-H;63A]
2.4
The appellants cannot rely upon rule 12.14(3) of the Punjab Police Rules, 1934
which provided that "sons and near relatives of person who have done good
service in the Punjab Police or in the Army shall, subject to the consideration
imposed by rule 12.12 have preference over the other candidates for police
employment". Under rule 30 of the Rules any relaxation should be made by
the Administrator (Lt. Governor of the Union territory of Delhi) and not by the Deputy Commissioner
of Police. Thus no reliance can be placed on the order of relaxation passed by
the Deputy Commissioner of Police on 3.10.1981 and since by the letter dated
April 3, 1982 the Delhi Administration had imposed an additional condition in
respect of the wards of Delhi 53 Policemen/Class IV employees that only one son
of police personnel/ Class IV employee would be considered for gram of such
relaxation the appellants cannot claim that they were entitled to be recruited
because admittedly their brothers had already been recruited in the Delhi
Police service on the basis of an earlier order of relaxation. [63C-F] &
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2547 of 1985.
From
the Judgment and Order dated 15.5.1984 of the Delhi High Court in L.P.A. No.
157 of 1983 S.A.K. Dar and P.D. Sharma for the Appellants.
Anand Prakash, N.D. Garg, Miss Sushma Relan for the Respondents.
The
Judgment of the Court was delivered by VENKATARAMIAH, J. The above appeal by
special leave arises out of a writ petition filed by the appellants in the High
Court of Delhi for the issue of a direction to the Delhi Administration to appoint
them as police Constables.
Prior
to the coming into force of the Delhi Police Act, 1978 (Act No. 34 of 1978)
(hereinafter referred to as 'the Act') with effect from the 1st day of July,
1978, there was in force in the Union territory of Delhi the Police Act, 1861.
On the commencement of the Act, the Police Act, 186 1 ceased to be in force in Delhi by virtue of section 149 of the
Act. The first proviso to section 149(1) of the Act, however, provided that all
rules and standing orders (including the Punjab Police Rules, as in force in
Delhi) made under the Police Act, 1861 would be in solar as they were
consistent with the Act be deemed to have been respectively made under the Act.
Accordingly the Punjab Police Rules, 1934 as in force in Delhi which had been
enacted under the Police Act, 1861 continued to be in force even after the
commencement of the Act. Chapter 12 of the Punjab Police Rules, 1934 contained
the rules relating to the appointments and enrolments of Assistant
Superintendents of Police, Deputy Superintendents of Police, Inspectors,
Sergeants, Assistant Sub-Inspectors, Range Auditors, Head Constables and
Constables. Recruitment to the cadre of Constables was done under rules 12.12
to 12.22 of the Punjab Police Rules, 1934. Rules 12.14 and 12.15 dealt with the
status of the recruits, 54 the qualifications, age and the physicial standards
which the recruits had to satisfy. Rules 12.14 and 12.15 of the Punjab Police
Rules, 1934 read as follows:
"12.14.
Recruits--Status of. (1) Recruits shall be of good character and great care
shall be taken in selecting men of a type suitable for police service from
candidates presenting themselves for enrolment.
(2)
The enlistment in the police of Gurkhas of Nepalese nationality is absolutely
forbidden. The enlistment of Gurkhas, who can prove British nationality or
continuous domicile, is permitted, but only with the formal sanction of the
Deputy Inspector-General. Before giving sanction the Deputy Inspector-General
should verify the nationality of the proposed recruit by a reference to the
recruiting Officer for Gurkhas.
(3)
Sons and near relatives of persons who have done good service in the Punjab
Police or in the Army shall, subject to the consideration imposed by rule 12.12
have preference over the other candidates for police employment.
12.15.
Recruits--age and physical standards of. (1) Recruits shall be not more than
25, or less than 18 years of age, at the time of enrolment, and shall have a
minimum height of 5'-7" and normal chest measurement of 33", with
expansion of 11/2 inches. These, physical standards shall not be relaxed
without the general or special sanction of the Deputy Inspector-General. A
general reduction of the standard may be allowed by Deputy Inspectors-General
in the case of special castes or classes, which provide desirable recruits, but
whose general height does not come up to that prescribed. In such cases a
standard of chest measurement and general physique shall be fixed, which will
permit the enlistment of strong and well-proportioned youths of the class in
question.
(2)
The greatest care shall be taken to ensure that the age of every police officer
is correctly recorded at the time of his enrolment and appointment. The record
then made becomes of utmost importance when the question arises of 55 an
officer's fight to pension, and is accepted as decisive in the absence of full
proof both that the original entry was wrong and that the date of birth
originally given was due to a bona fide mistake.
A copy
of this rule shall be pasted inside the cover of the recruit register (form
12.13) and the attention of the Civil Surgeon shall be drawn to it."
Section 147 of the Act authorises the Administrator (Lt. Governor of the Union territory of Delhi) to make rules for carrying out the purposes of the Act.
Clause (a) of section 147 (2) of the Act expressly states that such rules may
provide for recruitment to, and the pay, allowances and all other conditions of
service of the members of, the Delhi police under clause (b) of section 5. In exercise
of the said power the Administrator (Lt. Governor of the Union territory of
Delhi) promulgated the Delhi Police (Appointment and Recruitment) Rules, 1980
(hereinafter referred to as "the Rules") providing for the
appointments of Inspectors, Sub-Inspectors, Assistant Sub-Inspectors, Head
Constables and Constables. Rule 9 of the Rules laid down the procedure for the
recruitment of the Constables. The said rule, as it was originally promulgated,
read as follows:
"9.
Recruitment of Constables.--Delhi being a cosmopolitan city, it is imperative
to attract candidates from all parts of the country.
(ii)
The recruitment of constables shall be done twice a year in the months of
January and July by the Board to be nominated by Commissioner of Police as per
rule 8.
(iii)
The Commissioner of Police may also order special recruitment at any time if
there are sufficient number of vacancies and the panels prepared earlier have
exhausted.
(iv) A
panel shall be drawn up of selected candidates on the basis of existing and
anticipated vacancies.
This
panel shall be valid till the next recruitment is held.
(v)
Physical, educational, age and other standards for recruitment to the rank of
constables shall be as under:56 (a) Age 18-21 years Relaxable by 5 years for (i)
Scheduled Caste/Scheduled Tribes candidates (ii) Sportsmen of distinction.
(iii)
Ex-servicemens per rule 28 of these rules.
(b)
Height 170 CentiRelaxable by 4 centimeters meters for residents of Hill area
e.g. Gurkhas, Garwalis.
(c)
Chest 170 CentiRelaxable by 2 centimeters meters for residents of hill areas.
(d) EducaMatric/
Relaxable up to 9th pass tional Higher only for: Qualifi Secondary (i)
Bandsmen, buglers, cation 10th of mounted Constables, drivers, 10 plus 2 despatch
riders etc.
(ii) for
sons of police personnel who die in service.
(e)Physical
Sound state No relaxation permissible.
standard
of health, free from defect/ deformity/ disease, vision 6/12 without glasses
both eyes, free from colour blindness.
(f) Reserva(i)
For Scheduled Castes, tion of Scheduled Tribes, Ex-service vacancies men etc.
as per orders issued by Government from time to time.
(ii)
For sons of police personnel not more than 5 % of vacancies.
57
(vi) The Commissioner of Police shall frame standing orders prescribing application
forms and detailed procedure to be followed for conducting physical efficiency,
physical measurement, written tests and viva-voce for regulating the above
mentioned recruitment.
The
Rules were amended by the Administrator (Lt. Governor of the Union territory of
Delhi on May 2, 1983 and one of the amendments made on that occasion was the
addition of rule 32 to the Rules. The new rule 32 of the Rules read as follows:
"All
provisions contained in the Punjab Police Rules as applicable to the Union territory of Delhi, relating to appointments and recruitment of employees are
hereby repealed, subject to the provisions as contained in the provisos to
sub-section (1) and (2) of section 149 of the Delhi Police Act, 1978." The
Rules were again amended in 1985. On that occasion rule 9 of the Rules which
provided for the recruitment of the Constables was amended but we are not
concerned with these amendments made in the year 1985 since we are concerned in
this case with the rules which were in force prior to the above said amendment.
Rule 30 of the Rules which is relevant for purposes of this case reads as
follows:
"30
Power to relax.--When the Administrator is of the opinion that it is necessary
or expedient so to do, he may, by order, for reasons to be recorded in writing,
relax any of the provisions of these Rules with respect to any class, category,
or persons or posts or in an individual case." As stated at the
commencement, this appeal arises out of the writ petition bearing no. C.W .P.
No. 1891 of 1982 on the file of the High Court of Delhi filed under Article 226
of the Constitution. The said writ petition was filed by 23 petitioners, who
were applicants for the posts of Constables in the Delhi Police Force governed
by the Act. They prayed for the issue of a writ to the Delhi Administration to
appoint them as Constables and for other consequential reliefs. None of them
was fully qualified to be recruited as a Constable under the Rules. But being
the sons of Delhi policemen, they depended upon an order date 3.10.1981 passed
by the Deputy Commissioner of Police Headquarters (I) Delhi under which he had
relaxed the rules relating 58 to the qualifications in favour of the sons or
wards of Delhi policemen. The relevant part of the said order dated 3.10.1981
reads thus:
"The
wards of Delhi policemen should be given the
following concessions in age, educational qualifications and physical
standards, etc., for recruitment as Constables in Delhi Police:
1. Age
Upto 25 years
2.
Educational 9th Pass Qualifications
3.
Height -5'-5" 4. Chest --2" Relaxation.
All
those wards of Delhi Police Personnel who conform to the qualifications laid
down above should be' allowed to appear in the physical and written tests.
Their forms should be accepted as it was being done before the introduction of
New Rules.
The
last date for acceptance of forms may be enhanced from 3rd Oct., 1981 to 15th
October, 1981 and forms should be sold during holidays also.
sd/-A.K.
Aggarwal Deputy Commissioner of Police, HQ (1) Delhi No. 19512-45/SIP dated
Delhi, the-3-10-81." The appellants were eligible to be considered for the
appointment as Constables in the light of the order of relaxation referred to
above but even then they were not sent up for training which they had to
undergo before the appointment because six of them were found to be ineligible
since their brothers had already been recruited in the Police Department by
relaxing the rules of appointment in their favour. 15 of them were refused
permission to join the training course on the ground that the Administrator
(Lt. Governor of Union territory of Delhi) had not relaxed the qualifications in their cases. Two of
them, however, had in fact received a letter stating that the Administrator
(Lt. Governor of the Union territory of Delhi) had accorded sanction for
relaxation for recruitment in their cases and they could join the training
course with effect from 15.6.1982 but later on they 59 were also denied
admission into the Police force because their brothers had been recruited
earlier the Delhi Police service after according relaxation. The order of
relaxation in their favour had, therefore, been withdrawn. The appellants who
were thus aggrieved by the denial of admission into the service preferred the
above mentioned writ petition in the High Court for the issue of writ of
mandamus to the Delhi Administration to appoint them as Constables on the
ground that they satisfied the qualifications prescribed by the rules read with
the order of relaxation dated 3.10.1981 referred to above.
The
petition was resisted by the Delhi Administration.
It was
contended on behalf of the Delhi Administration that the order of relaxation
which had been passed on 3.10.1981 was not a valid one because (i) it had been
passed on the assumption that rule 12.14(3) of the Punjab Police Rules, 1934
was in force on the date on which it was passed but in fact the said rule stood
repealed on the coming into force of the Rules on 31.12.1980 framed under
section 147 of the Act and (ii) under rule 30 of the Rules relaxation of
qualifications could be made by the Administrator (Lt. Governor) not by the
Deputy Commissioner of Police. The Delhi Administration further alleged that
Standing Order No. 2 12 of 198 1 had been issued in connection with the
recruitment of Constables in Delhi Police and clause 10 of the said Standing
Order No. 212 read as follows:
"10.
RELAXATION:
(i) No
relaxation in qualifications/standards mentioned in this Standing Order shall
be given except in the cases and manner as laid down in the Delhi Police
(Appointment and Recruitment) Rules, 1980.
(iii)
Children of Police officers of subordinate rank serving or those who die in
office will be granted 5 marks in the written test as bonus. Relaxation in
other standards will not be given excepting with the sanction of competent
authority. ' ' Standing Order No. 212 of 1981 referred to above was further
amended as follows:
"The
wards of the Delhi Policemen will, however, be given 60 the following
concessions in age, educational qualifications and physical standards, to
enable them to take the physical and written tests:(1) Age Upto 25 years (2)
Educational 9th Pass Qualification (3) Height 5'-5" (4) Chest 2 inches
relaxation However, their enlistment would be done only in case of relaxation
being granted by the competent authority and mere fact that a candidate has
qualified in the test will not in itself give him a right to enlistment."
The Delhi Administration, however, agreed to grant relaxation to the wards of
Delhi Policemen/Class IV employees only upto the limit of 71/2% of the total
selection.
Accordingly
the Police authorities in charge of the selection of candidates recommended
cases of 259 candidates out of a total of 420 candidates who came within the
category of wards of Policemen/Class IV employees (within the limit of 71/2 %
of the total selection) to the Delhi Administration for seeking approval of the
competent authority on the basis of the following criteria:
"(i)
Only one son of police personnel/class IV employee to be considered for grant
of such relaxation.
(ii)
First preference to be given to wards of deceased, retired and incapacitated
policemen and class IV employees.
(iii)
Selection of the remaining candidates to be done, in order of merit in the
tests within the maximum permissible limit of 7 11/2% provided that they do not
need relaxation in more than two standards.
(iv)
With regard to Scheduled Castes and Scheduled Tribes candidates who are the
wards of Delhi Police personnel, the lowering of the limit of qualifying
percentage would also be applicable in addition.
61 The
aforesaid recommendations having been accepted by the competent authority the
police authorities allowed the candidates whose cases were covered by the above
criteria and the fixed percentage of 71/2% of such appointment to join the
training course. Since the case of the appellants were not covered by the above
criteria they were treated as being not eligible to be appointed as Constables.
After
hearing the learned counsel for both the parties the learned Single Judge who
heard the writ petition allowed it by his judgment dated July 21, 1983. He held that the Punjab Police
Rules, 1934 continued to remain in force even after the promulgation of the
Rules which came into force on 31.12. 1980 and the cases of the appellants were
protected by the relaxation order dated 3.10.1981 issued by the Deputy
Commissioner of Police and the fact that any of the brothers of the appellants
had been appointed earlier under the cover of similar order of relaxation did
not disentitle the appellants to claim the benefit of the order of relaxation.
The learned Judge was, therefore, of the view that the appellants were entitled
to be appointed as Constables. Since two of the appellants had already been
sent for training under the two letters of relaxation issued in their favour
the learned Judge issued a writ directing the Delhi Administration to send the
remaining 21 candidates also for training and to appoint them as Constables
after the completion of their training.
Aggrieved
by the decision of the learned Single Judge the Union of India and the Delhi
Administration filed an appeal before the Division Bench of the High Court in
Letters Patent Appeal No. 157 of 1983. The Division Bench held that on the
promulgation of the Rules with effect from 31.12.1980, rule 12.14(3) of the
Punjab Police Rules, 1934 which dealt with the subject of appointment of
Constables stood repealed. It further held that under rule 30 of the Rules the
power to relax the Rules in appropriate cases having been vested with the
Administrator (Lt. Governor of the Union territory of Delhi) the order of
relaxation issued by the Deputy Commissioner of Police on 3.10.1981 did not
give any right to the appellants for enlishment as Constables unless relaxation
was granted by the competent authority i.e. the Administrator (Lt. Governor of
the Union territory of Delhi) and the mere fact that a candidate was successful
in the test by itself would not give him a right to enlistment. The Court
further held that since by its letter dated April 3, 1982 the Delhi
Administration had decided that only one son of a police officer would be
considered for grant of such relaxation the appellants whose brothers had
already been employed in the police service on the basis of an earlier order of
62 relaxation were not entitled to be recruited by relaxing the Rules once
again. Accordingly the judgment of the learned Single Judge was set aside by
the Division Bench and the writ petition filed by the petitioners therein was
dismissed.
Aggrieved
by the decision of the Division Bench the appellants filed this appeal by
special leave.
The
first point which requires to be considered is whether the Punjab Police Rules,
1934 in so far as they related to the recruitment to the post of Constables was
concerned were in force after the promulgation of the Rules on 31.12.1980. It
is urged on behalf of the appellants that since rule 32 which provided that
"all provisions contained in the Punjab Police Rules as applicable to the
Union territory of Delhi, relating to the appointments and recruitment of
employees are hereby repealed, subject to the provisions as contained in the
provisos to sub-sections (1) and (2) of section 149 of the Delhi Police Act,
1978" had been introduced by an amendment of the Rules on May 2, 1983 it
must be presumed that the Punjab Police Rules, 1934 in so far as they related
to the recruitment and appointment of Constables remained in force till May 2,
1983. The contention of the Delhi Administration is that the said rule had been
introduced by way of abundant caution although in fact the Punjab Police Rules,
1934 had ceased to be in force on 31.12.1980 and the mere addition of rule 32
did not have the effect of keeping the relevant Punjab Police Rules, 1934 alive
after December 31, 1980. We are of the view that the Division Bench was right
in accepting the plea urged on behalf of the Delhi Administration in this
regard. Section 149(2) of the Act no doubt provided that the rules framed under
the Police Act of 1861 would continue to be in force after the Act came into
force in so far as they were consistent with the Act but at the same time
section 147 of the Act authorised the Administrator (Lt. Governor of the Union
territory of Delhi) to make rules regarding recruitment to, and the pay, allowances
and all other conditions of service of the members of the Delhi Police under
clause (b) of section 5. It is not disputed that rule 12.14 and rule 12.15 of
the Punjab Police Rules, 1934 and the rules promulgated on December 31,1980 dealt with the identical subject,
namely, the appointment and recruitment of Constables to the Delhi police service. Therefore, on the
promulgation of the Rules on December 31, 1980 which covered the subject dealt
with by rule 12.14 and rule 12.15 of the Punjab Police Rules, 1934 had the
effect of repealing by necessary implication rule 12.14 and rule 12.15 of the
Punjab Police Rules, 1934 even though initially there was no express 63
provision in the Rules to the effect that rule 12.14 and rule 12.15 of the
Punjab Police Rules, 1934 stood repealed with effect from December 31, 1980. It
is well-settled that when a competent authority makes a new law which is
totally inconsistent with the earlier law and that the two cannot stand
together any longer it must be construed that the earlier law had been repealed
by necessary implication by the later law. Applying the above test it has to be
held in this case that rule 12.14 and rule 12.15 of the Punjab Police Rules,
1934 stood repealed with effect from December 31, 1980 and rule 32 of the Rules
which was introduced by way of amendment on May 2, 1983 had not the effect
reviving rule 12.14 and rule 12.15 of the Punjab Police Rules, 1934 and keeping
them alive beyond December 31, 1980 upto May 2, 1983. When once this conclusion
is reached it follows that the appellants cannot rely upon rule 12.14(3) of the
Punjab Police Rules, 1934 which provided that "sons and near relatives of
person who have done good service in the Punjab Police or in the Army shall,
subject to the consideration imposed by rule 12.12 have preference over the
other candidates for police employment". Under rule 30 of the Rules any
relaxation should be made by the Administrator (Lt. Governor of the Union territory of Delhi) and not by the Deputy Commissioner of Police. Thus no
reliance can be placed on the order of relaxation passed by the Deputy
Commissioner of Police on 3.10.1981 and since by the letter dated April 3, 1982
the Delhi Administration had imposed an additional condition in respect of the
wards of Delhi Policemen/Class IV employees that only one son of police
personnel/Class IV employees would be considered for grant of such relaxation
the appellants cannot claim that they were entitled to be recruited because
admittedly their brothers had already been recruited in the Delhi Police
service on the basis of an earlier order of relaxation. The appellants have
not, therefore, made out any case in support of their plea.
We
should, however, point out at this stage a fundamental defect in the claim of
the appellants, namely, that rule 12.14(3) of the Punjab Police Rules, 1934
which authorised the granting of preference in favour of sons and near
relatives of persons serving in the police service became unconstitutional on
the coming into force of the Constitution.
Clauses
(1) and (2) of Article 16 of the Constitution which are material for this case
read thus:"16. (1) There shall be equality of opportunity for all citizens
in matters relating to employment or appointment to any office under the State.
64 (2)
No citizen shall, on grounds only of religion, race caste, sex, descent, place
of birth, residence or any of them, be ineligible. for, or discriminated
against in respect of, any employment or office under the State." While it
may be permissible to appoint a person who is the son of a police officer who
dies in service or who is incapacitated while rendering service in the Police
Department, a provision which confers a preferential fight to appointment on
the children or wards or other relatives of the police officers either in
service or retired merely because they happen to be children or wards or other
relatives of such police officers would be contrary to Article 16 of the
Constitution. Opportunity to get into public service should
be extended to all the citizens equally and should not be confined to any
extent to the descendants or relatives of a person already in the service of
the State or who has retired from the service.
In
Gazula Dasaratha Rama Rao v. The State of Andhra Pradesh & Others, [1961] 2
SCR 931 the question relating to the constitutional validity of section 6(1) of
the Madras Hereditary Village--Offices Act, 1895 (3 of 1895) came
up for consideration before this Court. That section provided that where two or
more villages or portions thereof were grouped together or amalgamated so as to
form a single new village or where any village was divided into two or more
villages all the village officers of the class defined in section 3, clause (1)
of that Act in the villages or portions of the villages or village amalgamated
or divided as aforesaid would cease to exist and the new offices which were
created for the new village or villages should be filled up by the Collector by
selecting the persons whom he considered best qualified from among the families
of the last holders of the offices which had been abolished. This Court held
that the said provision which required the Collector to fill up the said new
offices by selecting persons from among the families of the last holders of the
offices was opposed to Article 16 of the Constitution. The Court observed in
that connection at pages 940941 and 946-947 thus:
"Article
14 enshrines the fundamental fight of equality before the law or the equal
protection of the laws within the territory of India. It is available to all,
irrespective of whether the person claiming it is a citizen or not.
Article
15 prohibits discrimination on some special grounds--religion, race, caste,
sex, place of birth or any of them. It is available to citizens only, but is
not restricted to any employment or office under the State. Article 16 cl. (1),
guarantees equality of opportunity for all citizens in matters 65 relating to
employment or appointment to any office under the State; and cl. (2) prohibits
discrimination on certain grounds in respect of any such employment or
appointment. It would thus appear that Art. 14 guarantees the general right of
equality; Arts. 15 and 16 are instances of the same right in favour of citizens
in some special circumstances. Articles 15 is more general than Art. 16, the
latter being confined to matters relating to employment or appointment to any
office under the State. It is also worthy of note that Art. 15 does not mention
'descent' as one of the prohibited grounds of discrimination, whareas Art. 16 does.
We do not see any reason why the full ambit of the fundamental right guaranteed
by Art. 16 in the matter of employment or appointment to any office under the
State should be cut down by a reference to the provisions in Part XIV of the
Constitution which relate to Services or to provisions in the earlier
Constitution Acts relating to the same subject
.............................................
..............................
,.. (Pages 940--941).
There
can be no doubt that s.6(1) of the Act does embody a principle of
discrimination on the ground of descent only. It says that in choosing the
person to fill the new offices, the Collector shall select the persons whom he
may consider the best qualified from among the families of the last holders of
the offices which have been abolished.
This,
in our opinion, is discrimination on the ground of descent only and is in
contravention of Art. 16(2) of the Constitution." (Pages 946--947).
We are
of opinion that the claim made by the appellants for the relaxation of the
Rules in their cases only because they happen to be the wards or children or
relatives of the police officers has got to be negatived since their claim is
based on 'descent' only, and others will thereby be discriminated against as
they do not happen to be the sons of police officers. Any preference shown in
the matter of public employment on the grounds of descent only has to be
declared as unconstitutional. The appellants have not shown that they were
otherwise eligible to be recruited as Constables in the absence of the order of
relaxation on which they relied. Hence they cannot succeed.
66 We,
however, make it clear that this judgment shall not affect the appointments of
sons or wards of police officers already made by relaxing the Rules and they
shall remain undisturbed.
In the
result the appeal fails and it is dismissed.
There
shall, however, be no order as to costs.
S.R.
Appeal dismissed.
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