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2 S.C.R. SUPREMECOURT REPORTS THE STATE OF UTTAR PRADESH AND OTHERS v. BABU RAM UPADHYA (P. B. GAJENDRAGADKAR, A. K. SARKAR, K. SUBBA RAO, K.N.W ANCHOO and J. R. MuDHOLKAR, JJ.) 679 PublicServant-Police Officer, dismissal of-Polict; Regula tions, i~hether mandatory-Disregardof, if invalidates disciplinary action--Autlwrities empow,orcd to take action-If exercise powersof Governor-PoliceAct, r86r (V of r86r), s. 7-U. P.PoliceRegula tions, 1ara. 486-Constitution of India, Arts. r54, 309, 3ro, 3rr. The respondentwas a sub-Inspector of Police. Acomplaint wasreceivedby the Superintendentof Police that the com plainant was carryingcurrencynotes of Rs. 650 in a bundle whenhe wasstoppedby therespondent and his personwas searched, that the respondentopened the bundle of notes and handed over the notesone by one to oneLalji,who was with him and that Lalji returned the notes to him but on reaching home he found the notes short byRs. 2:;0. Proceedingsunder 1) s. 7 of the Police Actweretakenagainstthe respondenton the · charge of misappropriationof Rs. 250 andhe wasdismissedfrom serviceby anorder of the DeputyInspectorGeneral of Police. The respondentfiled a writpetitionbefore the High Court chal lengingthe order of the dismi,sal on theground that the autho ritieshad actedin violation of RuleI of Para. 486of the U. P. Police Regulation. This rulerequired that everyinformation receivedby the police relatingto the commission of a cognizable offence by a Police Officershall be dealtwith in the first place under Ch. XIV,Code of Criminal Procedure. The High Court held that the provisionsof para. 486 of the Police Regulations had not beenobserved and that the proceedings taken under s. 7 of the Police Act wereinvalid and illegaland accordingly quashed the order of dismissal.The appellant contended (i) that the complaint rity to i~itia~ the depa~t~ental proceeding The State of Uttar without complymg with the prov1s1onsofsub-para. (!)Pradesh &- Others of para.486. The relevant portion of para. 486 of the v. PoliceRegulationsreads: · Babu Ram "When the offence alleged against a policeofficer upadhya amounts to an offenceonly undersection7 of the Police Act, therecan be nomagisterialinquiry under Subba Rao f. the Criminal Procedure Code. . In such cases, and in other cases until and unlessa magisterial inquiry is ordered,inquiry will be made under the direction of the Superintendent of Policein accordance with the followingrules: ......... " Rule I relates to acognizableoffence, r. II to a non cognizableoffence, including an offence under s. 29 of the Police Act, and r. III to an offence under s. 7 of the Police Act or a non-cognizableoffence, including an offence under s. 29 of the PoliceAct. Rule III says: "When a Superintendent of Police seesreason to take actionon informationgiven to him,or onhis ownknowledge or suspicion, that a policeofficersub ordinate to him hascommitted an offenceunder sec tion7 of the Police Act or a non-cognizableoffence (including an offenceunder section29 of the Police Act) of which he considers it unnecessary at that stage to forwarda report in writing to the District Magistrateunder rule II above,he willmake or cause to be made by an officersenior in rank to the officer charged,a departmentalinquiry sufficient to test the truth of the charge. On the conclusion of this inquiry he will decidewhether further action is necessary, and if so,whetherthe officercharged. shouldbe depart mentallytried, or whether the DistrictMagistrate shouldbe moved to take cognizance of thecase under the Criminal Procedure Code ... " The argument is that the words "an offenceunder s. 7 of the Police Act" take in a cognizableoffence and that, therefore, this rule providesfor a procedure alternative to that.prescribedunder r. I. We do not think that this contentionis sound.Section 7 of the Police Act empowerscertain officers to dismiss,suspend 690 SUPREME COURT REPORTS [1961] 1960 or reduce any police officer of the subordinate rank The State of Uttar whom they.shall think remiss or negligentin the_ dis Piadesh .s. Others charge of his duty, or unfitfor the same. The grounds v. for punishment are comprehensive: they may take in Babu Ram offences under the Indian Penal Code or otherpenal upadhya statutes. The commission of such offences may also bea ground to hold that an officeris unfit to holdhis Subbn Rao j. ffi A o ce. ctionunder this sectioncan, therefore,be taken in respectof, (i) offencesonly under s. 7 of the Police Act withoutinvolving any cognizableor non cognizableoffences, that is, simpleremissnessor negli gence in the discharge of duty, (ii) cognizableoffences, and (iii) non-cognizableoffences. Paragraph 486 of the Police Regulations makes this clear. It says that when the offence allegedagainsta policeofficer amounts to an offence only under s. 7 of the Police Act, there can be no magisterialinquiry under th<;l Criminal Procedure Code. This part of the rule applies to an offenceonly under s. 7 of the Police Act i. e., the firstcategory mentionedabove. Rule I refers to a cognizableoffence i.e., the secondcategory,rule II to a non-cognizable offencei. e., the third category, and rule III applies to an offenceunder s. 7 of the Police Act and to a non cognizableoffence. Though the word "only" is not mentioned in rule III, the offence under s. 7 of the Police Act can, in the context, mean an offenceonly under s. 7 of the saidAct i.e., an offencefalling under the first category. So understood, the three rulescan bereconciled.We, therefore,hold that, as the offence complained of in the present caseis a cognizable offence, it fallsunderrule I and not under rule III. 'Ve, therefore,reject this contention. The third contentionadvanced by learned counsel forthoappellantsraises a constitutional point of con siderableimportance.The gist of the argument may be stated thus: In England, the service under the Crown is held at the Crown's pleasure,unless the em ploymentis forgoodbehaviouror fora cause. But if there isa statute prescribing the terms of service and the mode 0f dismissal of the servant of the Crown, the statute wouldcontrol the pleasure of the Crown. In India, the Constitution as well as the 2 S.C.R. SUPREME COURT REPORTS 691 earlier Constitution Acts of 1915, as amended in 1919, I960 and 1935 embodied the incidents of "tenure at plea- The Sta-;.-; 1 Uttar sure" of His Majesty, or the President or the Gover- Pradesh .s. Others nor, as the case may be, but did not empower the v. Legislatures under the earlierActs and the Parliament Babu Ram and the Legislaturesunder the Constitution to make upadhya a lawabrogating or modifying the said tenure;there- Subba Rao J. fore, any law made by appropriate authorities confer- ringa power on any subordinateofficer to dismiss a servant must be construed not to limit the power of His Majesty, the President or the Governor, as the case may be, but only to indicate that they wouldex- press their pleasureonly through the said officers. The rulesmade in exercise of a powerconferred on a Governmentunder a statute so delegating the power to a subordinateofficer can onlybe administrative directions to enable the exercise of the pleasure by the concernedauthorities in a reasonable manner and that any breach of thoseregulations cannot possibly confer any right on, or givea cause of actionto, the aggrievedGovernment servant to go to a court of law and vindicatehis rights. Mr. Pathak, learnedcounselfor the respondent, in countering this argument contends that the constitu tion Acts in India embodied the incidents of the tenure of the Crown's pleasure in the relevant provi sions and what the Parliament can do in England, the appropriate Legislatures in India also can do, that is, "the tenure at pleasure" created by the Con stitution Actscan be abrogated,limited or modified by law enacted by the appropriate legislative bodies. Alternativelyhe contends that even if the Police Act does not curtail the tenure at pleasure, the Legislature validlymade that law and the Governmentvalidly made statutory rules in exercise of the powers confer ed under that Act and that, therefore, the appropriate authoritiescan onlydismiss the respondent in strict compliance with the provisions of the Act and the Rules made thereunder. To appreciate the problempresented and to afford asatisfactory answer it wouldbe convenient to con sider the relevantprovisions. The Act we are con cerned with in this caseis the Police Act,1861(Act V 692 SUPREME COURT REPORTS [1961] '960 of 1861). Its constitutional validity at the time it was The State of Uttar ma.de wa~ no~ 9uestioned. ynder s. ~ of the Police r.adesh & Others Act, as it origmally stood, the a.ppomtment of a.11 v. police officers other than those mentioned in s. 4 of Babu Ram this Actshall, under suchrulesas the local Govern upadhy• ment shallfrom time to time sanction,rest with the Subba Rao 1. Inspector-General, Deputy Inspectors-Genera.I, Assis tant Inspectors-General and District Superintendents of Police, who may, under suchrules as aforesaid, at any time,dismiss,suspend or reduce any police-offi cer." That sectionwas substituted by the present section in 1937 and later on someappropriate amend ments were made to bring it in conformity with the Constitution. Under the amendedsection, "Subject to such rules as the State Government may from time to time make under this Act, the Inspector-Genera.I, Deputy Inspectors-Genera.I,Assistant Inspectors-Gene ral and District Superintendent of Police may a.t any time dismiss,suspend or reduce any police officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same". In exercise of the powersconferredon the Government by s. 46 of the Act, the Government made the U. P. PoliceRegulationsprescribing the procedure for investigation and inquiry.We shall deal with the Regulations at a later stage. In the Government of India.Act, 1915, as amended by the Act of 1919, for the first time, the doctrine of "tenure at pleasure" wasintroduced by s. 96-B. In exercise of the powerconferredunder sub-s. (2) cer tain classificationrules were framed by the local Government. This Actwasrepealed by the Govern ment of India Act, 1935, and the section correspond ing to s. 96-Bwas s. 240(1)in the latter Act. Section 241(2)empowered,except as expresslyprovided by the Act, the Governor-General and the Governor to prescribe the conditions of service of the servants they were empowered to appoint. The main differencebetween the Act of 1919 and ,. that of 1935 was that in the former Act there was only one limitationon the Crown's pleasure, namely, that no person in the service might be dismissed by 2 S.C.R. SUPREME COURT REPORTS 693 an authority subordinate to that by which he was r960 appointed,whereas in the latter Act a secondlimita- - tionwas imposed,namely, that no suchpersonshould PTkcdStahte ,,,010ut1ar b d. · dd · d · nk t"l hhdb ta es "'" lhers eism1sseor reuce in ra un i eaeen v. given a reasonable opportunity of showingcause Babu Ram against the action proposed to be taken in regardto upadhya him: see s. 240, sub-ss. (2) and (3). Anotherdiffe- rencebetween the said two Actswas that while under Subba Rao J. the formerAct all the serviceswere placedin the sameposition,under the latter Act specialprovision was made for the police force prescribing that the conditions of service of the subordinfl,te ranks of the variouspolice forcesshouldbe such as might bedeter- mined by or under the Actsrelating to thoseforces respectively-vide s. 243. By the Constitution, the Act of 1935 was repealed,and, with certain changes inphraseology,els. (1) and (2) of Art. 310 took the place of sub-ss. (1) and (4) of s. 240 respectively, and Art. 309 took the place of s. 241(2). Under Art. 313, "Until other provisionis madein this behalf under thif'I Constitution,all the laws in forceimmediately before the commencement of this Constitutionand applicableto any public serviceor any post which continuesto exist after the commencement of this Con- stitution,as an all-India service or as serviceor post nnder the Unionor a State shallcontinue in forceso far as consistent with the provisions of this Constitu- tion". The result· is that the PoliceAct and the PoliceRegulations,made in exercise of the powers conferredon the Government under that Act, which werepreservedunder s. 243 of the Government of India Act, 1935, continue to be in force after the Con- stitutionso faras they areconsistent with the provi- sions of the Constitution. It iscommoncase, as the contentions of learned counseldisclose, that the Act and the Regulations ~ framed thereunderwere constitutionallyvalid at the inception and that they are alsoconsistentwith the provisions of the Constitution. The difference bet ween the two contentionslies in the fact that accord ing to one His Majesty'spleasure cannot be modified ' -· 88 I 694 SUPREME COURT REPORTS [1961] '960 by a statute, according to the other it is subject to Ihe state of Uttar statut.ory.provisions. The relevant provisions of the Pradesh & Others Const1tut10n read thus: v. Article 309: "Subject to the provisions of this Bab.u Ram Constitution,Acts of the appropriate Legislature may upadhya regulate the recruitment, and conditions of service of persons appointed, b public services and posts in Subba Rao J. connectionwith the affairs of the Union or of any State: Provided that it shall be competentfor the Pre sident or such personas 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 personas he may direct in the case of services and posts in connection with the affairs of the State, to make rulesregulating the recruitment, and the condi tions of service of personsappointed, to such services and posts until provisionin that behalf is made by or under an Act of the appropriateLegislature under this article, and any rules so madeshall have effect subject to the provisions of any such Act." Article 310: "Except asexpresslyprovided by this Constitution,every personwho is a member of a defenceservice or of a civilserviceor holds any post connectedwith defence or any civilpost under the Union holdsoffice during the pleasure of the Presi dent, and every personwho is a member of acivil service of a State or holds any civilpost undera State holds office during the pleasure of the Governor of the State." Under Art. 309 the appropriateLegislature may regu late the recruitment and conditions of service of per sons appointedto publicservices. Under Art. 310 every person who is a member of apublicservice des cribed thereinholds office during the pleasure of the President or the Governor,as the case may be. The words "conditions of service" in Art. 309 in their comprehensivesense take in the tenure of a civil ser vant: see N. W. F. Province v. Suraj · Nara·in('). Therefore, "the tenure at pleasure" is alsoone of the conditions of service. But Art. 309 opens out with a (1) A.I.R. (1949) P.C. "" • 2 S.C.R. SUPREME COURT REPORTS 695 restrictiveclause, namely, "Subject to the provisions r96o of this Constitution", and if there is norestrictive Th 51 -, -1 Utt clause in Art. 310, there cannotbe any difficultyin Pr:des~ e;. Othe:: holding that Art. 309 is subject to the provisions of v. Art 310; with the result that the power of the Legis- Babu Ram lature to lay down the conditions of service of per- upadhya sonsappointed to publicserviceswould be subject to "the tenure at pleasure" under Art. 310. In that event, Subba Ran f. any lawmade by the Legislaturecould not affect the over-ridingpower of the President or the Governor, as the case may be, in putting an end to the tenure at their pleasure.Would the opening words of the clause in Art. 310, namely, "Except as expressly pro- vided by this Constitution'',make any difference in the matter of interpretation? It should be noticed that the phraseology of the _f'laid clausein Art. 310 is differentfrom that in Art. 309. If therl') is a specific provisionin some part of the Constitutiongiving to a Governmentservant a tenuredifferentfrom that pro- videdfor in Art. 310, that Government servant isex. eludedfrom the operation of Art. 310. The saidwords refer, interalia, to Arts.124, 148, 218 and 324 which provide that the Judges of the SupremeCourt, the Auditor General, the Judges of the High Courts and the Chief Election Commissionershall not be removed from their officesexceptin the mannerlaid downin thoseArticles. If the provisions of the Constitution specificallyprescribingdifferent tenures were excluded fromArt. 310, the purpose of that clausewouldbe ex- hausted and thereafter the Articlewould be freefrom any otherrestrictiveoperation. In that event, Arts. 309 and 310 shouldbe readtogether,excluding the opening words in the latter Article,namely, "Except as expresslyprovided by this Constitution". ·Learned counselseeks to confine the operation of the open- ingwordsin Art. 309 to the provisions of the Consti- tutionwhich empower other authorities to make rules relatingto the conditions of service of certainclasses of public servants,namely, Arts.-146(2),148(5) and 229(2). That may be so, but there is noreasonwhy Art. 310 shouldbe excludedtherefrom. It follows that while Art. 310 providesfor a tenure at pleasure 696 SUPREME bOURT REPORTS [1961] 1960 of the President or the Governor, Art. 309 enables the - · Legislature or the executive, as the case may be, to Th• Stat• of Uttar k11 · rd ' t l' t d' P?adesh & Othersll_la e any a~ or ~u e m. rei:ia .' in er a ia, o con. i- "· t10ns of service without impmgmg upon the overnd- Babu Ram ing powerrecognized under Art. 310. l:Ipadhya Learned counselfor the respondent contendstha.t this construction isinconsistent with that prevailing Subba Rao J. in the Englishlaw a.nd that the intention of the fra mers of the Constitution could not have been to make a radical departure from the law of England. The law of England on. the doctrine of "tenure at plea sure" has nowbecome fairly crystallized. In England, all servants of the Crown holdoffice during the plea. sure of the Crown; the right to dismiss at pleasure is an implied term in every contract of employment of the Crown, this doctrineis not based upon any prero gative of the Crown, but on public policy; if the terms of appointment definitelyprescribe a tenure for good behaviour or expressly provide for a power, to deter mine fora ·cause, such an implication of a power to dismiss a.t pleasureis excluded, and an Act of Parlia ment can abrogate or amend the said doctrine of pub licpolicy in the same way as it cando in respect of any other part of commonlaw. The said propositions are illustrated in the followingdecisions: Shenton v. Smith ( 1 ), Gould v. Stuart( 2), Reilly v. The King ('i, Terrell v. Secretary of State('). This English doctrine was not incorporated in its entirety in the Indian enactments-vide State of Bihar v. Abdul Majid( 5), ParshotamLal Dhingra v. Union of India('). Sec tion 96-B of the Government of India Act,1915,for the first time in 1919, by amendment, statutorily recognized this doctrine, but it was made subject to a condition or aqualification,namely, that no person in that service might be dismissed by any authority subordinate to that by which he wasappointed. Sec tion 240 of the Act of 1935imposed another limita tion, namely, that a reasonable opportunity of show ing cause against the actionproposed to be taken in (1) [1895] A.C. 229. (3) [1934) A.C. 176. (S) [1954] S.C.R. 786.(2) [1896] A.C. 575. (4) (1953)2 All E R. 490. (6) [1958] S.C.R. 828. 1- 2 s.c.R. SUPREME COURT REPORTS 697 regard to a person must begiven to him. But neither 1960 of the twoActs empowere? t~e appropria.te Legisl?>- TheState of Uttar ture to makea lawabohshmgor amendmg the said Pradesh & Others doctrine. The Constitution of India practicallyincor- v. porated the provisions of ss. 240 and 241 of the Act Babu Ram of 1935 in Arts. 309 and 310. Bat the Comititution Upadkya has not made ''the tenure at pleasure" subject to any law made by the appropriateLegislature. On the other hand, as we have pointed out, Art. 309 is ex- presslymade subjectto "the tenure at pleasure" in Art. 310. Nor the attempt of learnedcounselfor the respon dent to discoversuch a power in the Legislature in the Entries of the appropriateLists of the Seventh Schedule to the Constitutioncan be legallysustained. He referred, inter alia., to Entry 70 of List I and Entry 41 of List II. It iis not disputed that Parlia ment can makelaw for the organization of the police and for the prevention and detection of crime. But under Art.245 of the Constitutionsuch a power issubject to the provisions of the Constitution and, therefore,is subject to the provisions of Art. 310. Nor canwe implysuch a powerin Parliament or the Legislaturesfrom Art.154(2)(b} of the Constitution. Under Art.154, "the executivepower of the State shall be vestedin the Governor and shall be e:rercised by him eitherdirectlyor throughofficers subordinate tohim in accordancewith this Constitution'', and under cl. 2(b) thereof, "nothing in this Articleshall prevent Parliamentor the Legislature of the State from conferringby lawfunctionson any authority subordinateto the Governor." The argument is that a power to terminate the service at pleasure under Art. 310 isa part of the executivepower of the State, that power under Art. 154 can be exercised by the Governordirectly or throughofficers subordinate to him, and that under Art. 154(2)(b) the Parliament or the Legislature of the.State can conferthe samepower on any authority subordinateto the Governor or, at any ra;;e, can makea lawprescribing that the Gover nor shallexercise the said pleasurethrough a particu lar officer. Subba Rao j. 698 SUPREME COURT REPORTS [1961) 1960 We cannot agree either with the premises or the - 1 u conclusionsought to be basedon it. The firstques- The Stale o llar •• hh f P d h ,,. Othm t10nis w et er the powero the Governor under ra " v. Art. 310 to terminate the services of a Government Babu Ram servant at pleasureis part of the executivepower of Upadhya the State under Art. 154 of the Constitution.Article 154speaks of the executivepower of the State vesting Subba Rao J. in the Governor; it does not deal with the constitutio nal powers of the Governorwhich do not form part of the executivepower of the State. Article 162 says that, subject to the provisions of the Constitution, the executivepower of the State shall extend to matters with respect to which the Legislature of the State has power to makelaws. If the Legislature of the State has no power to makea lawaffecting the tenure at pleasure of the Governor, the saidpower must neces sarilyfall outside the scope of the executivepower of the State. As wewillpresentlyshow, the Legislature hasno suchpowerand, therefore, it cannotbe a part of the executivepower of the State. That apart, if the said poweris part of the executivepower in its generalsense, Art. 162 imposes another limitation on that power,namely, that the said executivepower is subjectto the provisions of the Constitution and therefore,subject to Art. 310 of the Constitution. In eitherview, Art. 310 falls outside the scope of Art. 154 of the Constitution. That power may be analogous to that conferredon the Governor under Arts. 174, 175 and 176.Doubtless the Governor may have to exercise the said power,whenever an occasionarises, in the manner prescribed by the Constitution, but that in itselfdoes not make it a part of the executive power of the State or enablehim to delegatehis power. Even on the assumption that the power under Art.310 is executivepower within the meaning of Art. 154, it does not make any difference in the legal positionso far as the present case is concerned. Arti cle 310 of the Constitutionsays that unless expresssly provided by the Constitution to the contrary,every civilservantholds office during the pleasure of the Governorsubject to the limitationsprescribed under 2 S.C.R. SUPREMECOURT REPORTS 699 Art. 311. Can it be said that Airt. 154(2)(b)expressly z96o provides for a differenttenure?: Can ~t be said that rhe st;~-,, 1 uuar the said Articleconferson t~e Parliament or the Pradesh & Others Legislaturea powerhigher tqan that conferredon v. them under Art. 245 of · the Constitution ? It only Babu Ram preserves the power of the Legi$1ature, which it has upadhya under the Constitution, to make ~law conferringfunc- Subba Rao J. tions on an authority subordinlata to the Governor. That powerunderArt. 245is hot unlimited, but is subject to the provisions of the Cpnstitution and there- foresubjectto Art. 310 thereof. • It is then said that if the appellants' contention were not accepted, it wouldlead ~o conflict of jurisdic tion: while the Governorhas tP.e power under Art. 310 to dismissa public servan~ at his pleasure,a statute may confera poweron a ~ubordinate officer to dismissa servantonly subject to conditions;a sub ordinate officer functioning unde~ an Act may not be able to dismissa servant, but t~e Governor may be able to doso undersimilarcircumstances;a subordi nate officer may dismiss a servan!t, but the Governor may orderhis continuance in offic~. This argument is basedupon the· misapprehension of the scope of Art. 309 of the Ofnstitution. A law made by the appropriate Legisratu".'e or the rules made by the President or the Governor, as the case may be, under thesaidArticle may confera power upona particularauthority to rem6ve a public servant from service; but the conferment df such a powerdoes not amount to a delegation of the Governor'spleasure. Whatever the said authority does .1 1 is by virtue of ex presspowerconferredon it by a s~atute or rulesmade by competentauthorities and nI by virtue of any delegation by the Governor of his ower.There can not be conflictbetween the exerci e of the Governor's pleasureunder Art. 310 and 瑨愉 of an authority under a statute,for the statutor,r power would be alwayssubject to the overridingpleasure of the Governor. I This conclusion, the argumen~ proceeds, would throw a public servant in India. to t~e mercy of the exe cutive Governmentwhile their c01ppeers in England 700 SUPREME COURT REPORTS [1961] 1960 can be protected by legislation against arbitrary Th• 5,.-;,-;, 1 u11., acti_ons of the. Sta_te. This apprehension has no re~l Pradesh ;;;. ot1urs basis, for, unlike m England,a member of the publw v. service in India isconstitutionallyprotected at least Babu Ram in two directions: (i) he cannot be dismissed by an Upadhya authority subordinate to that by which he was appointed;(ii) he cannot be dismissed,removed or Subba Rao ]. reduced in rank until he has been givena reasonable opportunity of showingcause against the actionpro posed to be taken in regard to him. A condition similarto the first condition in Art. 311 found in s. 96-B of the Government of India Act, 1919,was held by the Judicial Committee in R. T. Rangachari v. Secretaryof State forIndia (1) to have a statutory force, and the secondcondition,wnich is onlya repro duction of that found in sub-section (2) of s. 240 of the Government of India Act, 1935,was held in High Commissionerfor India and HighCommissionerfor Pakistan v. I. M.Lall( 2 ) as mandatory qualifying the right of the employerrecognized in sub-section(I) thereof.These two statutory protections to the Government servant a.re now incorporated in Art. 311 of the Constitution. This Articleimposestwo qualifi cations on the exercise of the pleasure of the President or the Governor and they quite clearlyrestrict the operation of the rule embodied in Art. 310(1)-vide the observations of Das, C.J., in Dhingra's case('). The most important of thesetwo limitationsis the provi . sionprescribing that a civil servant shallbe givena reasonableopportu11ity of showing cause against the actionproposed to be ta.ken in regard to him.As this conditionis a limitation on the "tenure a.t pleasure", a lawcan certainlybe made by Parliament defining the content of "reasonable opportunity" and prescrib ing the procedurefor giving the said opportunity. The appropria~e High Court and the Supreme Court can test the validity of sucha lawon the basis whe ther the provisionsprescribed provide for such an opportunity, and, if it is valid, to ascertain whether the reasonable opportunity soprescribedis really given to a particular officer. It may be that the (1) (1936) L.R. 64 I.A. 40. (2) (1948) L.R. 7S I.A. 225. (3) [1958] S.C.R. 82B, 839. 2 S.C.R. SUPREME COURT REPORTS . 701 framers of the Constitution, having incorporated in I960 our Co_nsti~uti?n the "tenure at pleasure" unha~p~re~ The state of Utta• by legislative mterference, thought that the said hmi- Pradesh &- Others tations and qualificationswould reasonably protect v. the interests of the civil servants against arbitrary Babu Ram actions. Upadhya The discussionyields the followingresults: (1) In Subba Rao J. India every personwho is a memper of apublicser vicedescribedin Art. 310 of the Constitutionholds officeduring the pleasure of the President or the Governor, as the case may be, subject to the express provisionstherein. (2) The power to dismissa pub lic servant at pleasureis outside the scope of Art. 154 and, therefore,cannot be delegatedby· the Governor to a subordinateofficer, and can be exercised·by him only in the manner prescribed by the Constitution. (3) This tenure is subjectto the limitationsor qualifica tions mentioned in Art. 311 of the Constitution. (4) The Parliament or the Legislatures of States . cannot make a law abrogating or modifyingthis tenureso as to impinge upon the overriding powerconferred upon the Presidentor the Governor under Art. 310, •as qualified by Art.311. (5) The Parliament or the Legislatures of States can make a. law regulating the conditions of service of such a memberwhich includes proceedings by way of disciplinaryaction, without affecting the powers of the Presidentor the Governor under Art. 310 of the Constitutionread withArt. 311 thereof. (6) The Parliament and the Legislaturesalso can make a law layingdown and regulating the scope and content of the doctrine of "reasonable opportu nity" embodiedin Art.311 of the Constitution; but the said'law wouldbe subject to judicialreview. (7) If a statute could be made by Legislatureswithin the foregoing permissiblelimits, the rules made by an. authority in exercise of the powerconferred there under would likewisebe efficaciouswithin the said limits. What then is the effect of the saidpropositions in their application to the provisions of the PoliceAct and the rules madethereunder?The PoliceAct. of 89 702 SUPREME COURT REPORTS [1961] 196o 186i continues to be goodlaw under the Constitution. - Paragraph 477 of the PoliceRegulationsshows that ~:;a:~~ 1•;.t 0~~:;; the rules in Chapter XXJ_CII thereof havebeen fram- v. ed under s. 7 of the PohceAct. Presumably, they Babu Ram were also made by the Government in exercise of its upadhya power under s. 46(2) of the PoliceAct. Under para. 479(a) the Governor'spower of punishmentwith refe- Subba Rao .J. renceto all officersis preserved; that is tosay, this provisionexpressly saves the power of the Governor under Art. 310 of the Constitution. "Rules made under a statute must be treated for all purposes of construction or obligationexactly as if they were in the Act and are to be of the sameeffect as if contain edin the Act, and are to bejudiciallynoticed for all purposes of construction or obligation":see Maxwell "On the Interpretation of Statutes", 10th edn.,pp. 50- 51. The statutory rules cannot be describedas, or equated with, administrativedirections. If so, the Police Act and the rules made thereunder constitute a self-containedcode providingfor the appointment of police officers and prescribing the procedurefor their removal. It follows that where the appropriate authority takes disciplinaryaction under the Police Act or the rulesmade thereunder, it must conform to the provisions of the statute or the ruleswhich haveconferred upon it the power to take the said action. If thereis any violation of the said provi sions,subject to the questionwhich we willpresently considerwhether the rules are directory or mandatory, the public servant would have a right to challenge the decision of that authority. Learnedcounsel for the appellantsrelied upon the followingdecisions of the Privy Council and this Court in support of his contention that the saidrules are 11odministrative directions: R. T. Rangaehari v. Se.cre tary of State/orIndia('),R. Venkata Rao v. Secretary of State for India ('), High Commissioner forIndiaand High Commissioner forPakistan v. I. M. Lall('), S. A. Venkataraman v. The Union of India('), and Khem Chand v. The Union of India('). In Venkata Rao's (t) (1936) L.R. 64 I.A. 40. (2) (1936) L.R. 64 I.A. 55. (3) (r948) L.R. 75 I.A. 225. (4)[1954] S.C.R. 1150, 1.5) [1958] S.C.R.1o80. l 2 S.C.R. SUPREME COURT REPORTS 703 case (1) a reader of the GovernmentPress was dismiss- z96o ed and in the suit filed by himagainst the Secretary Th 5 - 1 u of State for India he complained, interalia, that the p,:de~~·; 01!~:: dismissalwas contrary to the statuteinasmuchas it v. was not precededby any such inquiryas wasprescrib- Babu Ram ed by rule XIV of the CivilServices Classification upad/Jya Rulesmade under s. 96B(2)of the Government of India Act. Under s. 96B of the said Act, everyperson Subba Rao J. in civil serviceholds office during the pleasure of His Majesty. Sub-section (2) of that sectionempowers the Secretary of State for India to makerules laying down, amongothers, the conditionsof service,and sub-s. (5) declares that no rulesso madeshall be construedto limitor abridge the power of the Secretary of State in Councilto dealwith the caseof any.personin the civil service of the Crown in India in suchmanneras mayappear to him to bejust and equitable. On a con- struction of theseprovisions the JudicialCommittee held |
