Sinha, J. - (1.) The facts in this case are shortly as follows: The petitioner Santosh Kumar Dutt, was appointed in the year 1919 as a member of the Calcutta Police Force, to work as a literate . Constable. It is a matter of dispute as to who appointed him. The learned Government Pleader says that the original record of his appointment is not available. Mr. Das Gupta however has drawn my attention to Section 10(1), Calcutta Police Act (hereafter referred to as the "Act") as it stood before the Government of India "Adaptation of Indian Laws Order 1937". It ran as follows: "The appointment of the members of the Police Force shall rest with the Commissioner of Police; and he may at any time suspend or dismiss any member of the force whom he shall think remiss or negligent in the discharge of his duties or otherwise unfit for the same."
(2.) The learned Government Pleader admits that the Commissioner of Police did have such power, but he argues that under Section 5 of the Act, the Provincial Government may from time to time appoint one or more deputies to the Commissioner of Police who shall be competent to perform any of the duties assigned to them under his orders. No such order has been placed before me to show that at the relevant date, the Commissioner of Police had delegated his power of appointing members of the Police Force. The position therefore is that prima facie it is the Commissioner who was the appointing authority in 1919 and the respondents are not in a position to show that such power had been delegated to any other Officer.
(3.) On 2-8-1939, Mr. Fairweather, the then Commissioner of Police, passed an order No. 2050 dated 2-8-1939 whereby the petitioner was promoted to act as a Sub-Inspector, with effect from 1-8-1939. This order is headed "Commissioner's Order" and a true copy of this order has been produced by the respondents, which shows that the order was signed by Mr. Fairweather himself. By a similar order No. 1694 dated 24-5-1943, signed by Mr. Fairweather, the petitioner was appointed Sub-Inspector on probation. By another order being order No. 2768 dated 4-7-1944, the petitioner who was then acting as a probationer Sub-Inspector was confirmed in his appointment. This last order is signed by Mr. Ray, the then Commissioner of Police. It appears that all these three orders are counter-signed by the Deputy Commissioner of Police, Headquarters and an argument was sought to be made before me that these orders are not of the Commissioner but of the Deputy Commissioner of Police, Headquarters. This argument in my opinion, must at once be rejected. These orders all bear the heading "Commissioner's order" and are signed by the Commissioner of Police. I do not know under what circumstances or for what purpose they were counter-signed by the Deputy Commissioner of Police, Headquarters. It is impossible however to treat these orders as that of a subordinate officer when they purport to be the commissioner's orders and are signed by the Commissioner of Police himself. Regard being had to the three orders mentioned above, there can be no doubt that the appointing authority of the petitioner was the Commissioner of Police. The learned Government Pleader has placed before me a certain letter from the Government of Bengal Police Department, and also some printed rules relating to recruitment of subordinate ranks of the Calcutta Police. From the letter it appears that the rules were framed under Section 9, Calcutta Police Act and were approved by Government. It shows that in respect of Sub-Inspectors in the unarmed branch, the appointing authority is the Deputy Commissioner of Police Headquarters. It is by no means clear however as to whether in cases of promotion the Deputy Commissioner of Police Headquarters could be said to be the appointing authority. There is nothing before me to show that these Rules were in operation in 1919, 1939, 1943 or 3944. Assuming however that these Rules were in operation, and that cases of promotion could also be taken as appointment, it is clear that these Rules did not take away the right of the Commissioner of Police granted by the Act. At best, the Deputy Commissioners have delegated authority. If the Commissioner of Police chooses to exercise his power conferred by the Act, it cannot be held to be invalid. The orders plainly show that the Commissioner of Police has exercised his right and he is the appointing authority in the case of the petitioner.;