Commissioner Of Police vs R.D. Mittal & Anr.
2010 Latest Caselaw 3287 Del

 *           IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                         W.P.(C) No. 4022/1999


 COMMISSIONER OF POLICE                                  ...... Petitioner

                                  Through:      Mr. Maninder Singh, Sr.
                                                Advocate with Ms. Prathiba
                                                M. Singh , Mr. Gaurav and
                                                Mr. J.P.Karunakaran,
                                                Advocates.

                                  VERSUS

 R.D. MITTAL & ANR.                                      ....Respondents

Through: .None.

CORAM:

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

% JUDGMENT

SANJAY KISHAN KAUL, J (ORAL)

1. The present writ petition under Article 226 of the Constitution of India

seeks to impugn the order of the Central Administrative Tribunal (CAT) dated

6.3.1998 in terms whereof an application filed by the respondent No.1 herein

against his transfer in the post of an Assistant Commissioner of Police (ACP)

was held to be bad in law on account of lack of allocation of authority in the

Commissioner of Police to carry out such a transfer. The substratum of the

disputes is as to whether powers of transfer in case of an ACP, vests with the

Commissioner of Police, Delhi or with the Lieutenant Governor as

Administrator. We may note that respondent No.1 has since passed away and

his legal heirs have been brought on record. The matter has however been

prosecuted by the Commissioner of Police on account the important question of

law which arises for consideration, the Lieutenant Governor having been

impleaded as respondent No.2.

2. In order to understand the controversy, it is to be noted that The Delhi

Police Act 1978 (hereinafter referred as the said Act) was enacted by the

Parliament and brought into force w.e.f. 1.7.1978. Some of the salient sections

of the Act germane for determination of the controversy are as under:-

"Section 3

One police force for the whole of Delhi--There shall be one police force for the whole of Delhi and all officers and subordinate ranks of the police force shall be liable for posting to any branch of the force including of Delhi Armed Police. Section 5.

Constitution of police force--Subject to the provisions of this Act--

(a) the Delhi police shall consist of such number in the several ranks and have such organization and such powers, functions and duties as the Administrator may, by general or special order, determine; and

(b) the recruitment to, and the pay, allowances and all other conditions of service of the members of, the Delhi police shall be such as may be prescribed:

Provided that nothing in clause (b) shall apply to the recruitment to, and the pay, allowances and other conditions of service of the members of the Indian Police Service or Delhi, Andaman and Nicobar Islands Police Service.

Section 6

Commissioner of Police--For the direction and supervision of the police force in Delhi, the Administrator shall appoint a Commissioner of Police who shall exercise and perform such powers and duties and perform such functions as are specified by or under this Act.

Section 8

Deputy, Additional Deputy and Assistant Commissioners of Police--(1) The Administrator may appoint one or more Deputy Commissioners of Police or Additional Deputy Commissioners of Police or Assistant Commissioners of Police for the purposes of this Act.

Section 15

General powers of Commissioner of Police--The Commissioner of Police shall direct and regulate all matters of arms, drill, exercise, observation of persons and events, mutual relations, distribution of duties, study of laws, orders and modes of proceedings and all matters of executive detail or the fulfillment of their duties by the police force under him.

Section 19

Framing of regulations for administration of the police-- Subject to the orders of the Administrators, the Commissioner of Police may make regulations not inconsistent with this Act or any other law for the time being in force--

(a) regulating the inspection of the police force by his subordinate;

(b) determine the description and quantity of arms, accoutrements, clothing and other necessaries to be furnished to the police;

(c) prescribing the places of residence of members of the police force;

(d) for institution, management and regulation of any police fund for any purpose connected with police administration;

(e) regulating the distribution, movements and location of the police;

(f) assigning duties to police officers of all ranks and grades, and prescribing the manner in which, and the conditions subject to which they shall exercise and perform their respective powers and duties;

(g) regulating the collection and communication by the police of intelligence and information;

(h) generally, for the purpose of rendering the police efficient and preventing abuse or neglect of their duties."

3. The aforesaid provisions thus clearly support the plea of the Delhi Police

Force that under the Act there has to be one police force for the whole of Delhi

under the directions and supervision of the Commissioner of Police to be

appointed by the Administrator.

4. The apparent conflict is stated to arise on account of the notification

published in the Gazette of India dated 9.10.1995 in terms whereof the Delhi

Andaman and Nicobar Islands Police Service Rules 1995 (hereinafter referred

as to the said Rules) were framed by the Government of India in exercise of

power conferred by the proviso to Article 309 of the Constitution of India.

Article 309 states as under:-

"309. Recruitment and conditions of service of persons serving the Union or a State--Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of

services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."

The relevant Rule is Rule 12 of the said Rules which reads as under:-

"12. Posting.

Every member of the Service allocated to an Administration shall, unless he is appointed to the Ex- cadre post, or is otherwise not available for holding a duty post owing to the exigencies of the Public Service, be posted against a duty post under the Administration by the Administrator or concerned."

5. The case of the original respondent No.1 was that in view of the

aforesaid Rule 12, the power of posting only vested with the Lieutenant

Governor as an Administrator.

6. In our considered view, there are two aspects of the matter based on the

submissions of learned senior counsel for the petitioner.

7. The first aspect arises from the interplay of the said Act and the said

Rules. No doubt, the Rules have been enacted subsequently but, in view of the

provisions of the said Act providing for the management by the police force by

the Commissioner of Police including of distribution of duties as per the

provisions which have been extracted hereinabove, there could be no doubt of

the existence of such power in the Commissioner of Police. If we read the

provisions of the said Act and Rule 12 of the said Rules, even assuming there is

a conflict, the legal position is quite settled in view of the observations of the

Supreme Court in Union of India and Ors Vs. Somasundram Viswanath and

others (1989) 1 SCC 175 We extract below the relevant observations:-

"6. It is well settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can laid down either by a law made by the appropriate legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State Governments. If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under proviso to Article 309 of the Constitution of India prevail, and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate legislature the law made by the appropriate legislature prevails."

It is thus abundantly clear that though the said Rules have been enacted in

exercise of the powers conferred under the proviso to Article 309 of the

Constitution of India, since the said Act is a legislative enactment of the

Parliament, the provisions of the said Act would prevail.

8. The second aspect is the clarification issued by the Government of India,

Ministry of Home Affairs itself as to the scope and ambit of Rule 12 of the said

Rules. It would be useful to reproduce the communication addressed by the

Joint Secretary, Ministry of Home Affairs, Government of India to the

Principal Secretary (Home) Government of NCT which reads as under:-

"New Delhi, the 19th April, 1999

Kindly refer to the correspondence resting with your d.o. letter No. 3/118/94-NP (Estt) 3427 dated the 29th January, 1999 regarding amendment to rule 12 of the DAMIPS Rules.

2. The matter has been examined in consultation with the Ministry of Law (Deptt. of Legal Affairs). It has been held that:

(a) Rule 12 of the said rules provides that every member of the Service allocated to Administration shall be posted against a "duty post" under the Administration by the Administrator concerned. The power conferred on the Administrator under the said rule 12 stands exhausted as soon as a member of the Service is given a particular grade and a "duty post";

(b) The Commissioner of Police, Delhi has been empowered under section 15 of the Delhi Police Act to direct and regulate all matters relating to distribution of duties and all matters of executive detail or the fulfillment of duties of the Police Force as referred to in Section 3 of the said Act. Section 3 of the Act, inter alia, provides that there shall be one Police Force in the whole of Delhi and all officers and subordinate ranks of the Police Force shall be liable for posting to any branch of the force including the Delhi Armed Police. It is clear therefore that although initially the posting and grade is given by the Administrator to the officers of the services, yet all the officers of the Delhi Police are liable to be transferred under Section 15 of the Delhi Police Act, which in effect means, that they can be allocated duties by the Commissioner of Police; and

(c) The judgment dated 6th March, 1998 of the Hon'ble Central Administrative Tribunal (Principal Branch) in the case of Shri R.D.Mittal Vs. Lt. Governor, Delhi and ors. (O.A. No. 2262/97) may be challenged by filing a writ petition before a Division Bench of the Hon'ble Delhi High Court under articles 226/227 of the Constitution of India on the grounds mentioned above.

3. I shall be grateful if further action in the matter is taken accordingly. A copy of the note containing the advice tendered by the Department of Legal Affairs is enclosed"

9. The aforesaid communication thus makes it abundantly clear, which is

in fact the contention of the learned senior counsel for the petitioner, that Rule

12 of the said Rules only operates at the time when a member of the service is

allocated to the Administrator and is to be posted to his initial duty, whereafter

it stands exhausted. This is the reason why according to learned senior counsel

for the petitioner, there was in fact no conflict whatsoever and the submission

as to how the conflict was to be resolved, was made in the alternative.

10. We are thus of the considered view that the power of posting of an

Assistant Commissioner of Police would vest with the Commissioner of Police

under the said Act and Rule 12 of the said Rules, is confined to the initial

posting of the ACP by the Administrator (LG) on his initial assignment to

service. In fact, if the matter is looked at practically also, it would be

impossible for the Commissioner of Police to run the force, if he cannot decide

the postings and has to run to the Administrator for every posting. This of

course does not take away the power of the Administrator in any manner,

because under the said Act, it is the Administrator who appoints the

Commissioner of Police. We may note that the police force is under the

control of the Ministry of Home Affairs, Government of India and not under

the Government of NCT.

11. The impugned order dated 6.3.1998 is accordingly set aside and the rule

is made absolute leaving the parties to bear their own costs.

CM No.7865/1999

The application does not survive for consideration and is disposed of

accordingly.

SANJAY KISHAN KAUL, J.

JULY 15, 2010                                VALMIKI J. MEHTA, J.
ib