K. N. Wahcaoo, J. - (1.) This appeal by special leave raises the question of the constitutionality of the All India Services Act (LXI of 1951) (hereinafter called the Act). The appellant was appointed to the Indian Police Service on October 1, 1949, and posted to the State of Punjab. He held charge as Superintendent of Police in various districts but was reverted as Assistant Superintendent of Police in August 1957, and was eventually posted to Dharamsala in 1958. In the same month he was informed that it was proposed to take action against him under R. 5, All-India Services (Discipline and Appeal) Rules, 1955, (hereinafter called the Rules), framed under S. 3 of the Act. He was thereafter placed under suspension under R. 7 of the Rules pending disciplinary proceedings against him, and Shri K. L. Bhudiraja I. A. S. was appointed enquiry officer to hold the departmental enquiry against him. Notice was issued to him by the Enquiry Officer in July 1958. He thereupon immediately made an application under Art. 226 of the Constitution before the Punjab High Court challenging the constitutionality of the Act and the legality of the enquiry against him. The application was dismissed on July 30, 1958, and his application for a certificate to appeal to this Court was dismissed next day. Thereupon he came to this Court and was granted special leave.
(2.) Shri Chatterjee appearing for the appellant has raised the following six points in support of the appeal:- 1. The amendment made by the President in Art. 312 of the Constitution by virtue of his power under Art. 392 by the Constitution (Removal of Difficulties) Order No. II of 26th January, 1950, was in excess of the power conferred on him under Art. 392 ; 2. It was not within the competence of the provisional Parliament to enact the Act in 1951, as there was no compliance with the condition precedent to such an Act being passed under Art. 312 ; 3. The Rules when promulgated in 1955 were bad as they were repugnant to Art. 312 as the amendment made by the President by the Constitution (Removal of Difficulties) Order No. II had ceased to have force and Art. 312 stood in 1955 as originally enacted in the Constitution ; 4. Art. 312 laid a mandate on Parliament to make a law regulating the recruitment and conditions of service of All-India services created, under that Article and Parliament could not delagate this function to the Central Government, and, therefore, S. 3 of the Act was invalid ; 5. In any event, the delegation made by S. 3 of the Act was excessive and, therefore, section 3 should be struck down ; and 6. The Punjab Government has no authority to institute these proceedings under the Rules.
(3.) Re. 1, 2 and 3:These three points may conveniently be taken together. Article 392 provides that "the President may, for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act,1935, to the provisions of this Constitution, by order direct that this Constitution shall during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient; provided that no such order shall be made alter the first meeting of Parliament duly constituted under Chap. II of Part V." The purpose of this provision is obvious from the very words in which it was made. Further Art. 379 provided that "until both Houses of Parliament have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution shall be the provisional Parliament and shall exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament." As there was only one House during the transitional period, there were bound to be difficulties in the application of the Constitution, which envisaged a becameral legislature. Consequently, the President passed the Constitution (Removal of Difficulties) Order No. II on January 26, 1950, by which among other adaptations, he made an adaptation in Art. 312 also, to this effect:- "In cl. (1), omit 'if the Council of States has declared by resolution supported by not less than two-third of the members present and voting that it is necessary or expedient in the national interest so to do'." This order was to come into force at once and was to continue until both Houses of Parliament had been duly constituted and summoned to meet for the first session under the provisions of the Constitution. After removal of the omitted words, Art. 312 read as follows:- "(1) Notwithstanding anything in Part XI, Parliament may by law provide for the creation of one or more All-India services common to the Union and the States, and subject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service. (2) The services known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article.";