State Of U.P. And Another Vs. Anil Kumar Bharti

Allahabad High Court (Division Bench (DB)- Two Judge)

SPECIAL APPEAL DEFECTIVE, 302 of 2015, Judgment Date: May 28, 2015

HIGH COURT OF JUDICATURE AT ALLAHABAD 

Chief Justice's Court AFR 

Case :- SPECIAL APPEAL DEFECTIVE No. - 302 of 2015 

Appellant :-                                        State Of U.P. And Another 
Respondent :-                                   Anil Kumar Bharti 
Counsel for Appellant :-                  A.K. Roy, S.C. 
Counsel for Respondent :-             C.B. Yadav, Addl. Advocate General, U.P., Shashank Shekhar Singh, Addl. Chief Standing Counsel,                                           S.N. Bhardwaj,Rajesh Singh 

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice 
Hon'ble Manoj Kumar Gupta,J. 

The special appeal has arisen from a judgment and order of the learned Single Judge of this Court dated 17 November 2014. While allowing the writ petition under Article 226 of the Constitution, the learned Single Judge set aside an order dated 16 June 2014 issued by the Commandant of the Fourth Battalion of the PAC at Allahabad dismissing the respondent from service under Rule 4 (1) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 19911. The punishment was imposed upon the respondent after a regular departmental inquiry into a charge of misconduct. The basis on which the learned Single Judge has allowed the writ petition is that the respondent being a Group-D employee in the police department would not, in the view of the learned Single Judge, be governed by the Rules of 1991 applicable to police officers of the subordinate ranks and that the disciplinary proceedings would be governed by the rules framed by the Governor under Article 309 of the Constitution namely the Uttar Pradesh Government Servant (Discipline and Appeal ) Rules, 19992. 
The respondent was appointed on the post of a peon, which is a Group-D post under the Dying-in-Harness Rules, 1974 on 20 May 2010. On 5 June 2013, a charge-sheet was issued to him under rule 14 (1) of the Rules of 1991 on the ground of continuous absence with effect from 21 November 2011. The respondent submitted his reply on 22 June 2013 and 25 June 2013. A disciplinary inquiry was initiated in the course of which the inquiry officer submitted his report on 15 March 2014. Thereafter, a notice to show cause was issued by the Commandant of the Fourth Battalion of the PAC on 16 April 2014 calling upon him to show cause as to why he should not be dismissed from service under rule 4 (1) (a) of the Rules of 1991. The respondent submitted his reply to the notice to show cause on 4 May 2014. An order of dismissal was passed on 16 June 2014. The respondent challenged the order in writ proceedings under Article 226 of the Constitution. 
The learned Single Judge allowed the petition on the ground that the services of the respondent were governed not by the Rules of 1991 but by the Rules of 1999 applicable to the government servants. In taking this view, the learned Single Judge relied upon a decision of a Division Bench of this Court in Krishna Murari vs. State of U.P. and others3, decided on 10 April 2012. While allowing the writ petition and setting aside the order of dismissal, the learned Single Judge granted liberty to the appellants to proceed with the departmental proceedings against the respondent under the Rules of 1999 from the stage of the issuance of the charge-sheet. A direction was issued to restore the respondent to the status he was occupying when the charge-sheet was served together with consequential benefits including reinstatement. 
The State is in appeal. 
The issue which has been raised before the Court essentially turns upon the interpretation of the rules which have been framed by the Governor under Article 309 of the Constitution on the one hand and the rules framed under the Police Act, 18614 on the other hand which are applicable to members of the police force. Before we proceed to consider the two sets of rules, a brief reference to the provisions of the Police Act would be in order. 
The Police Act, 1861 was enacted to reorganize the police and to make it a more efficient instrument for the prevention and detection of crime. Section 2 of the Act of 1861 provides as follows: 
"2. Constitution of force.--The entire police establishment under a State Government shall for the purposes of this Act, be deemed to be one police force, and shall be formally enrolled, and shall consist of such number of offers and men, and shall be constituted in such manner, as shall from time to time be ordered by the State Government. 
Subject to the provisions of this Act the pay and all other condition of service of members of the subordinate ranks of police force shall be such as may be determined by the State Government." 

Under Section 7, disciplinary jurisdiction is vested, subject to the provisions of Article 311 and to such rules as the State Government may make to dismiss, suspend or reduce "any police officer of the subordinate ranks" who is found to be remiss or negligent in discharge of his duty or unfit for the same. 
Section 7 provides as follows: 
"7. Appointment, dismissal, etc. of inferior officers.--Subject to provisions of Article 311 of the Constitution and to such rules as the State Government may from time to time make under this Act, the [Director-General-cum-Inspector General], Deputy Inspectors-General, Assistant Inspectors General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think fit remiss or negligent in the discharge of his duty or unfit for the same; 
or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof namely : 
(a) fine to any amount not exceeding one month's pay; 
(b) confinement to quarters for a term not exceeding fifteen days, with or without punishment--drill, extra guards, fatigue or other duty; 
(c) deprivation of good conduct pay; 
(d) removal from any office of distinction or special emolument; 
(e) withholding of increments or promotion including stoppage at an efficiency bar." 
A rule making power is conferred upon the State Government by Section 46 (2) (c) under which the State Government is empowered by a notification in the official gazette to make rules consistent with the Act "generally, for giving effect to the provisions of this Act" 
In the decision of the Constitution Bench of the Supreme Court in State of U.P. vs. Babu Ram Upadhya5, it has been held that the Police Act and the Rules constitute a self-contained code, providing for the appointment of police officers and prescribing the procedure for their removal. 
The Supreme Court held as follows: 
"...the Police Act and the rules made thereunder constitute a self-contained code providing for the appointment of police officers and prescribing the procedure for their removal" 

This decision was reiterated in the subsequent decision of the Supreme Court in Chandra Prakash Tiwari vs. Shankuntala Shukla6 where it was held as follows: 
"The aforesaid provision of Section 12 thus authorises the Inspector General of Police to make rules obviously under the Act and in the nature of administrative instructions. As a matter of fact, a perusal of the provisions of the Act, in particular that of Section 46, makes it abundantly clear that the statute (the Police Act) ought to be treated as a complete code by itself-there is thus a special statute concerning the police force and within its fold are included the appointment, dismissal, placement and all other steps required to re-organise the police and make it more efficient instrument for the prevention and detection of crime. (emphasis supplied)" 
This position was duly followed in a judgment of the Full Bench of this Court in Vijay Singh vs. State of U.P.7 and more recently in a judgment of the Full Bench of this Court in State of U.P vs. Rajendra Singh8, decided on 11 May 2015. 
Article 309 of the Constitution empowers the President or, as the case may be, the Governor to make rules regulating the recruitment and conditions of service of persons appointed, to services and posts in connection with the affairs of the Union and, as the case may be, in connection with the affairs of the State, until a provision in that behalf is made by or under an Act of the appropriate legislature under the Article. Under the substantive part of Article 309, subject to the provisions of the 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. The proviso to Article 309 is in the nature of a transitory provision under which the President in the case of persons appointed to services and posts in connection with the affairs of the Union and the Governor in the case of persons appointed to services and posts in connection with the affairs of the State are empowered to make rules regulating the recruitment and conditions of service of such persons unless the legislature has enacted provisions in that behalf. The rules under the proviso to Article 309 have effect subject to the provisions of any such Act. 
Insofar as the rules under Article 309 are concerned, the Governor has made the Group 'D' Employees Service Rules, 19859. The Rules of 1985 apply by virtue of Rule 2 (1) to all Group 'D' posts referred to in Rule 6 in all the subordinate offices as defined in clause (h) of rule 4. 
Clause (h) of rule 4 of the Rules of 1985 is as follows: 
"(h) "Subordinate Offices" shall refer to all the offices under the control of the Government, excluding the Secretariat, offices of State Legislature, Lok Ayukt, Public Service Commission, High Court, Subordinate Courts under the control and the superintendence of the High Court, Advocate General and the establishments under the control of the Advocate General." 

The Group 'D' posts referred to in rule 6 include inter alia a peon, messenger, chaukidar and every other non-technical posts. Rule 3 gives overriding effect to the rules, in the event of any inconsistency between the rules and a specific rule pertaining to any of the aforesaid posts in any department, in case the specific rules were made prior to the commencement of the Rules of 1985. However, the provisions which are contained in the specific rules are to prevail in the event of inconsistency, if they are made after the commencement of the Rules of 1985. Rule 3 clearly indicates that in the case of any inconsistency, the Rules of 1985 will prevail over prior rules but in the case of any inconsistency with specific rules which are framed after the Rules of 1985, the later rules will apply in relation to the posts concerned in the department. The Rules of 1985 govern recruitment and conditions of service. Part-II deals with cadre; part-III with recruitment; part-IV with qualifications; part V with procedure for recruitment; part-VI with appointment, probation, confirmation and seniority; part-VII with pay; and part-VIII with other conditions. 
Rules under the proviso to Article 309 to govern discipline and appeal were framed in 1999. These rules called as the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 were made in suersession of the Civil Service (Classification, Control and Appeal) Rules, 1930 and Punishment and Appeal Rules for Subordinate Service Uttar Pradesh, 1932. Rule 1 (3) of the Rules of 1999 provides that these discipline and appeal rules shall apply to Government servants under the rule making power of the Governor under the proviso to Article 309 except officers and servants of the High Court covered by Article 229 of the Constitution. Rule 2 (i) defines the expression Group A, B, C and D posts to mean posts mentioned as such in the relevant service rules or the orders of the Government issued from time to time. The Rules of 1999 govern matters of discipline and appeal for Government servants generally. 
Insofar as the police force is concerned, Section 2 of the Police Act, 1861 stipulates that entire police establishment under the State Government is deemed to be one police force. Upon formal enrollment, the police force consists of such number of officers and men and is to be constituted in such a manner as may, from time to time, be ordered by the State Government. The State Government is empowered to determine the pay and all other conditions of service of the members of the subordinate ranks of the police force. The expression "pay and all other conditions of service of members of the subordinate ranks" evinces a legislative intent that every condition of service of a member of subordinate rank of the police force falls within the power of the State Government to determine. The determination by the State Government may either be in the form of subordinate legislation or in the form of an administrative direction. The State Government has been vested with a specific power under Section 7 of the Act of 1861 to frame rules subject to which the disciplinary jurisdiction over a police officer of a subordinate rank can be exercised. The rule making power is left in no manner of doubt by the enactment of Section 46 (2) (c) under which the State Government can frame rules for giving effect to the provisions of the Act. 
In 1991, the State Government exercised its rule making authority by notifying the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. These rules have been made in pursuance of the powers conferred by sub-section (2) of Section 46 and by Sections 2 and 7 of the Act of 1861. The expression 'police officer' is defined in rule 3 (g) of to mean a police officer of the subordinate ranks below the rank of Deputy Superintendent of Police. The Rules of 1991 make comprehensive provisions for governing all matters of disciplinary jurisdiction in relation to police officers of the subordinate ranks. Matters of recruitment and conditions of service of the members of the police force are governed by separate rules which have been framed by the State Government in exercise of the powers conferred by Sections 2 and 46 of the Act of 1861. For Group-D employees, the rule making authority has framed the Uttar Pradesh Police Group 'D' Employees Service Rules, 200910. Similarly, recruitment rules have been framed in exercise of the rule making power for other categories. 
For instance and by way of illustration, we may refer to : 
1. The Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2008; 
2. The Uttar Pradesh [Civil Police] Constable and Head Constable Service Rules, 2008; 
3. The Uttar Pradesh Pradeshik Armed Constabulary Subordinate Officers Service Rules, 2008; 
4. The Uttar Pradesh Pradeshik Armed Constabulary State Band Subordinate Officers Service Rules, 2009; 
5. The Uttar Pradesh Police Computer Staff (Non Gazetted) Service Rules, 2011; and 
6. The Uttar Pradesh Deputy Superintendent of Police (Ministerial) Service Rules, 1993. 

The rules which have been framed in 2009 to govern the Group-D employees of the police force inter alia, contain rule 29, which is in the following terms: 
"29. Regulation of other subjects.--In regard to the matters not specifically covered by these rules or by special orders, person appointed to a post in the service shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with the affairs of the State." 

As a matter of fact, we may note that there are corresponding provisions in the other recruitment rules to which a reference has been made above. 
The learned Single Judge relied upon a judgment of a Division Bench of this Court in Krishna Murari's case (supra). That case dealt with the exercise of the disciplinary jurisdiction over a cook in the PAC. The Division Bench relied upon the provisions of Rule 29 of the Rules of 2009. The Division Bench noted that the Rules of 2009 did not make any provision for disciplinary proceedings and held that the effect of rule 29 was that all matters which were not specifically covered by this rule would be governed by the Rules of 1999 generally applicable to government servants in the State. Following this view, the learned Single Judge, in the present case, has held that the disciplinary jurisdiction over the respondent who was a Group-D employee of the police force could be exercised not with reference to the Rules of 1991 which are applicable to the police officers of the subordinate ranks below the rank of Deputy Superintendent of police but by the rules framed in 1999 to govern government servants generally under the proviso to Article 309 of the Constitution. This view, with respect, is contrary to the law laid down by the Full Benches of this Court both in Vijay Singh's case (supra) and more recently in the case of Rajendra Singh (supra), decided on 11 May 2015. 
For convenience of reference, we deem it appropriate to extract from the principles of law which have been formulated by the Full Bench in the decision recently delivered in Rajendra Singh's case. 
"The principles of law 
Insofar as the present controversy is concerned, it would now be necessary for the Court to formulate the basic principles which have emerged on the subject: 
(i) The Police Act 1861 and the Rules framed under it constitute a self-contained Code and by virtue of the provisions of Article 313 of the Constitution, the Act and the Rules continue to remain in force, under Article 313 of the Constitution; 
(ii) Rules and Government Orders referable to a specific source of power under the Police Act 1861 such as Section 2 or, as the case may be, Section 46 (2) (c) would continue to hold the field and would not be abrogated merely by the exercise of the general rule-making power conferred by the proviso to Article 309 of the Constitution; 
(iii) Under the proviso to Article 309, rules regulating the recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the Union and of the States can be made until a provision in that behalf is made by or under legislative enactment of the appropriate legislature. Any rule so made will have effect subject to the provisions of the Act; 
(iv) When there is a specific provision, unless there is a specific repeal of the existing law, the question of an implied repeal would not arise; 
(v) The rules framed under the proviso to Article 309 of the Constitution would apply, generally speaking to Government servants appointed in connection with the affairs of the Union or, as the case may be, the States but the police force would be governed by the provisions of the Police Act 1861 and by the rules and administrative determinations referable to a specific source of power under the Police Act 1861; 
(vi) Under Section 2 of the Police Act 1861, the State Government has been vested with power to determine the pay and all other conditions of service of members of the subordinate ranks of the police force. The determination within the meaning of Section 2 may be both by means of the exercise of the rule-making power as well as by an administrative direction. The Police Act 1861, being a complete Code as enunciated by the Constitution Bench of the Supreme Court, it occupies the entire field of the determination of service conditions. The power to determine all the conditions of service of members of the subordinate ranks of the police force is vested with the state government. The state government has the rule making power under Section 46 (2) (c) to carry out the purposes of the Act by framing rules; 
(vii) Once a self-contained Code in the form of the Police Act has been enacted by the legislature and its continuance after the adoption of the Constitution is ensured by Article 313 and Article 372 of the Constitution, the field relating to recruitment and conditions of service of members of the police force in the State stands occupied by the legislation. Any rule or order relating to the determination of the conditions of service of the police force can be made only under the provisions of the Police Act or by the legislation enacted by the State legislature governing the service conditions of the police force. Section 2, Section 7 and Section 46 of the Police Act clearly evince an intent of the legislature to occupy the whole of the field relating to conditions of service of the police force; 
(viii) The ratio of the decision of the Supreme Court in A B Krishna's case is that if the legislature has already made a law and the field is occupied, in such a situation, rules can be made under the law enacted by the legislature and not under Article 309; 
(ix) The rules framed under a legislative enactment constitute delegated or subordinate legislation. The rules made under Article 309 are not of that nature. The rules which have been framed under Article 309 and the rules under an enactment of the state legislature are referable to two distinct sources of power. The rules made under the proviso to Article 309 are intended to deal with a situation where the President or the Governor, as the case may be, may regulate the recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the Union or, as the case may be, of the States until a provision in that behalf is made under an Act of the appropriate legislature under the Article. Though, the authority to frame rules in Article 309 vests with the Governor while the authority to frame subordinate legislation under the state enactment is vested with the State Government, the two jurisdictions are entirely different. One is referable to a transitional power which is vested in the President or the Governor, as the case may be, under the proviso to Article 309 while the other is traceable to the substantive power to frame subordinate legislation which is delegated to the State Government under a legislative enactment. Once a law has been enacted by the competent legislature and particularly in a situation where legislation, such as the Police Act is construed as a complete Code, it constitutes special statute governing the police force incorporating within its field, matters relating to appointment, dismissal, placement and all other steps required to reorganise the police and make it a more effective instrument for the prevention and detection of crime, as was held in Chandra Prakash Tiwari's case by the Supreme Court; 
(x) In Chandra Prakash Tiwari, the Supreme Court after considering the consistent position of the State Department of Home, held that 'by reasons of the provisions of a special statute, namely, the Police Act read with the authorization contained therein by way of executive order, the Governor of Uttar Pradesh obviously did not in fact intend to apply the general law to all and sundry'16. In this background, it has been held that unless the general rules which are framed under Article 309 of the Constitution specifically repeal the special rules and unless there is a specific repeal of the existing law, the question of an implied repeal would not arise17. The rules framed under Article 309 are for Government servants in general while the police force would be guided by the provisions of the Police Act. This interpretation which has been placed by the Supreme Court has been held to be consistent with the position adopted in inter-ministerial correspondence of the State Government; and 
(xi) The decision in Chandra Prakash Tiwari's case specifically deals with the Police Act and the applicability of the Rules framed under the proviso to Article 309 to members of the police force in the State of Uttar Pradesh. This decision of the Supreme Court has been duly followed by the Full Bench of this Court in Vijai Singh (supra) while holding that since the field of regulation of service conditions of members of the police force is occupied by the provisions of the Police Act and it continues to be in operation under Article 313, the Rules framed under Article 309 would not be attracted. 
There are observations in the concluding sentence of paragraph 8 of the decision in A B Krishna's case to the effect that if any matter is not touched by an enactment made by the legislature, it would be competent for the executive to either issue an executive instruction or to make a rule under Article 309 in respect of that matter. This observation cannot be pressed in aid of the operation of the rules framed under the proviso to Article 309 and their applicability to the police force. The exception which has been carved out in those observations may apply in a situation where a particular matter is not touched by the legislation enacted by the competent legislature. This, for instance, may be a situation where the statute by itself lays down the conditions of service but does not touch or regulate upon some matter relating to conditions of service nor does it contain a provision for delegated or subordinate legislation. That is not the situation in the case of the Police Act. The Police Act empowers the State Government to determine under Section 2, the pay and all other conditions of service of the members of the subordinate ranks of the police force subject to the provisions of the Act. The expression 'all other conditions of service' would encompass every condition of service of the members of the police force. Section 7 which deals with the appointment, dismissal and reduction in rank of officers of the subordinate ranks again refers to the rules framed by the State Government. Section 46 (2) empowers the State Government to frame rules generally for giving effect to the provisions of the Act. These are clear legislative indicia of the intent of the legislature to enact a self-contained Code regulating the police service and of the conferment of both administrative and rule-making authority upon the State Government to regulate all service conditions. In such a situation and in the face of a clear legislative intent evidenced both by the provisions of the Act and by the decisions of the Supreme Court, it would be manifestly erroneous for the Court to subscribe to the theory that the rules under Article 309 of the Constitution framed by the Governor would apply. Such a construction cannot be accepted on the basis of a plain textual interpretation of the provisions of the Police Act. Such a construction, as the Supreme Court observed in Chandra Prakash Tiwari's case, would be contrary to the grain of the inter-ministerial position adopted by the State Government. Finally, such a construction would run contrary to the interpretation placed by the Supreme Court on the Police Act as constituting a self-contained Code. The Police Act occupies the field of the regulation of service conditions of the police force." 

In taking this view, it must be noted that the Full Bench has adverted at length to the decisions of the Supreme Court particularly those in (i) State of U.P. vs. Babu Ram Upadhya (supra); (ii) A.B. Krishna vs. State of Karnataka11; and (iii) Chandra Prakash Tiwari (supra). The basic principle of law which has been formulated in the judgments of the Supreme Court and in the two decisions of the Full Benches of this Court is that the Police Act, 1861 and the rules framed under it constitute a self-contained code. Consequently, where rules have been framed or government orders have been issued in relation to the members of the police force specifically under the enabling provisions of Sections 2, 7 and 46 (2) (c), members of the police force would be governed by the specific rules or, as the case may be, government orders which would not be abrogated by the general rule making power which is conferred by Article 309 of the Constitution. Rules framed under the proviso to Article 309 apply generally speaking to government servants appointed in connection with the affairs of the Union or, as the case may be, of the States. However, members of the police force are governed by the specific provisions contained in the Police Act, 1861 and by the rules framed in pursuance of the power of subordinate legislation and by an administrative determination made under Section 2. Under Section 2, the State Government has the power to determine all the conditions of service of the members of the subordinate ranks of the police force. 
Consequently, the rules which have been framed under the proviso to Article 309 would not be applicable. That leads to the Court to the construction which must be placed on the provisions contained in rule 29 of the Rules of 2009. Rule 29 provides that in regard to matters which are not specifically covered by the rules or by special orders, a person appointed to a post in the service shall be governed by the rules, regulations and orders applicable generally to government servants serving in connection with the affairs of the State. Now, it must be noted that matters governing recruitment and general conditions of service have always been dealt with separately from matters governing the exercise of the disciplinary jurisdiction. 
The Rules of 2009 deal with issues such as the Cadre of service, Recruitment, Qualifications, Procedure for Recruitment, Appointment, Training, Probation, Confirmation and Seniority, Pay and other incidental provisions. The Rules of 2009 do not govern matters of discipline and appeal at all. Matters of discipline and appeal are specifically governed by the Rules of 1991. The effect of rule 29 of the Rules of 2009 is that if a particular matter pertaining to the ambit of those rules is not covered by the rules, then and in such a case, a person appointed to a post in the service will be governed by the rules, regulations and orders generally applicable to government servants. Rule 29 however cannot be extended to mean that matters relating to the exercise of the disciplinary jurisdiction which are specifically governed by the Rules of 1991 will notwithstanding those rules be governed by rules framed under the proviso to Article 309. Rules which have been framed under the proviso to Article 309 cannot apply merely on the basis of rule 29 of the Rules of 2009, once specific rules have been made in relation to officers of the police force of the subordinate ranks in 1991. 
However, the submission is that a Group D employee is not an officer of a subordinate rank below a Deputy Superintendent of Police and hence the Rules of 1991 will not apply. It is urged that under Paragraph 397 of the Police Regulations, Gazetted Officers of the force consist of officers upto the rank of Deputy Superintendent. Paragraph 398 provides that non-gazetted officers of the force shall consist of inspectors, sub-inspectors, head constables and constables. It is urged that this does not include a Group 'D' employee. 
We are not persuaded to accept the submission. The Rules of 1991 have been specifically applied to all Group 'D' employees by a Circular dated 13 March 2010, issued by the Police-Headquarters, Allahabad through the Deputy Inspector General of Police (Establishment), U.P. It provides that all pending matters relating to discipline and appeal of Group 'D' employees of the police department shall continue to be governed by the Rules of 2009 relating to government servants generally, in absence of any specific rules of the police department relating to disciplinary control over such employees during the period anterior to the framing of the Rules of 2009. However, since 28 August 2009, the date of coming into force of the Rules of 2009 (framed under section 2 and section 46 (2) and (3) of the Police Act), group 'D' employees in the police force got formally enrolled as members of the police force and thenceforth, they would be governed by the Rules of 1991. Under section 2 and section 46 (2) (c) of the Police Act, the State Government is empowered to lay down the conditions of service of 'members of the sub-ordinate ranks of the police force'. The phrase 'members of the sub-ordinate rank of the police force' in section 2 has been used in contradistinction to the phrase 'police officer of the sub-ordinate ranks' employed in section 7 and in the Rules of 1991. The power to lay down conditions of service of the members of the sub-ordinate rank of the police force under section 2 of the Police Act is wide enough to encompass within its ambit the laying down of the provisions relating to discipline and appeal of group 'D' employees. The Circular dated 13 March 2010 is thus, referable to the power under section 2 of the Police Act and amounts to a 'special order' within the meaning of Rule 29 of the Rules of 2009. Since a 'special order' occupies the field providing for the Rules of 1991 being made applicable to group 'D' employees of the police force, the procedure provided by the said rules relating to disciplinary control and appeal would thus, be applicable to group 'D' employees. Admittedly, the validity of the circular dated 13 March 2010 has not been called into question before us. For the foregoing reasons, we are unable to accept the submission made by the learned counsel for the respondent. 
For these reasons, we hold that the learned Single Judge was in error in allowing the writ petition and setting aside the disciplinary action which was adopted against the respondent on the basis that the respondent would be governed not by the Rules of 1991 but by the general rules framed under the proviso to Article 309 of the Constitution, namely the Rules of 1999. The learned Single Judge sought to draw support from the judgment of a Division Bench in Krishna Murari (supra). The judgment in Krishna Murari's case has with respect not noticed the position in law which was governed by several judgments of the Supreme Court as well as the judgment of a Full Bench of this Court in Vijay Singh's case (supra) which had been delivered prior to the decision of the Division Bench. Moreover, after the decision of the Division Bench in Krishna Murari's case (supra), the position of law has been now set at rest in the judgment recently delivered by the Full Bench in Rajendra Singh's case on 11 May 2015. Since the issue is squarely covered by two decisions of the Full Benches of this Court which have followed the law laid down by the Hon'ble Supreme Court, we are of the view that it would not be necessary to refer the correctness of the view of the Division Bench in Krishna Murari (supra) to a larger Bench for consideration. The learned Single Judge has not considered the challenge to the disciplinary proceedings on merits. Since we set aside the judgment of the learned Single Judge which had allowed the writ petition only on the basis that the Rules of 1991 had no application, we deem it appropriate to remit the proceedings back to the learned Single Judge for considering the challenge to the disciplinary action on merits. 
The special appeal is allowed in the aforesaid terms by setting aside the impugned judgment and order dated 17 November 2014. Writ-A No. 61203 of 2014 shall, accordingly, stand restored to the file of the learned Single Judge for disposal on merits in the light of the judgment rendered in this proceeding. 
There shall be no order as to costs. 
Order Date :- 28.5.2015 
                                                                                                                            RK (M.K. Gupta,J.) (Dr.D.Y.Chandrachud,C.J.) 




C.M. Delay Condonation Application No. 136214 of 2015 
Case :- SPECIAL APPEAL DEFECTIVE No. - 302 of 2015 
*** 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice 
Hon'ble Manoj Kumar Gupta,J. 

The delay of 121 days on the part of the State in filing the special appeal is condoned since sufficient cause has been shown in the affidavit filed in support. 
The delay condonation application stands disposed of. 
Order Date :- 28.5.2015 
                                                                                                                                                     RK (Dr. D.Y. Chandrachud,C.J.) 


                                                                                                                                                                                (M.K. Gupta,J.)