LODHA, J - (1.) THE respondent-plaintiff was a Constable in the Police Department and was deputed at the Police Out-post, Soorsagar in the month of May 1959. He was dismissed from service by Shri P. C. Mishra, Assistant Superintendent of Police, Jodhpur on 7-4-1970. THE respondent filed appeal from the order of dismissal but his appeal was dismissed by the Inspector General of Police, Rajasthan on 29. 12. 1960. It appears that the respondent also made grievance against his order of dismissal to the Government of Rajasthan but was informed by the Secretary, Home Department, Government of Rajasthan vide his letter dated 8-5-1963, that his appeal had rightly been dismissed by the Inspector General of Police. After having received the aforesaid letter from the Government of Rajasthan the plaintiff served a notice under S. 80 C. P. C. and filed the present suit in forma pauperis in the court of civil Judge, Jodhpur on 11. 12. 63 praying that the order of dismissal passed against the respondent be set aside and he may be awarded a decree for Rs. 2500/ on account of arrears of salary inclusive of dearness allowance up to the date of suit and a further sum of Rs. 1000/- on account of damages for wrongful dismissal. THE suit was resisted by the Government of Rajasthan inter alia on the ground that the impugned order of dismissal passed against the plaintiff was in accordance with law.
(2.) AFTER recording the evidence produced by the parties the learned civil Judge, Jodhpur dismissed the suit by his judgment dated 3-9-1966. Dissatisfied with the judgment and decree by the trial court the plaintiff filed appeal in the Court of District Judge, Jodhpur who by his Judgment dated 20-5-1969 allowed the plaintiff's appeal, set aside the judgment and decree by the trial court, and decreed the plaintiff's suit for declaration that the order of dismissal passed against him on 7. 4. 1960 and confirmed in appeal by the Inspector General of Police on 29. 12. 1960 was illegal and void. He also awarded a sum of Rs. 2500/- to the plaintiff on account of arrears of salary. The claim for Rs. 1000/- on account of damages was, however, disallowed. Aggrieved by the judgment and decree awarded by the learned District Judge, Jodhpur the State of Rajasthan has filed this second appeal. The only ground on which the learned District Judge has granted relief to the plaintiff-respondent is that the authority who passed the order of dismissal against the respondent was subordinate to the authority by whom the respondent was appointed. Thus according to the learned District Judge there was a clear contravention of the provisions of Art. 311 (1) of the Constitution, and consequently he held the order of dismissal to be illegal and void. Learned counsel for the appellant has urged that Shri P. C. Mishra who held the substantive post of Assistant Supdt. of Police was Officiating Superintendent of Police at the time when he passed the order of dismissal and since the Superintendent of Police was appointing authority Shri P. C. Mishra cannot be said to be an authority subordinate to the Superintendent of Police by whom the respondent was appointed, but was in equal rank to him. In this connection it may be relevant to state that the plaintiff had come forward with a case that he was appointed by the Inspector General of Police of the former State of Jodhpur in the year 1943 and could have only been dismissed by an authority equal in rank to the Inspector General of Police. The learned District Judge found that the appellant has failed to prove that he was appointed by the Inspector General of Police of the former State of Jodhpur. He has further found that the appellant was appointed afresh after the formation of the present State of Rajasthan by Shri Tarachand, Superintendent of Police, and that in the integrated set up the Superintendent of Police was the authority competent to appoint Constables in the Police Department. In this view of the matter the learned District Judge held that the dismissal of the appellant, if proved to have been ordered by the Superintendent of Police would be valid. It may be relevant here to state that the learned counsel for the respondent made a feeble attempt in this Court also to show that the respondent was initially appointed by the Inspector General of Police of the former State of Jodhpur. It is, however, conceded that no such order of appointment has been placed on the record. He has placed reliance on an Enrolment Form of the respondent signed by the then Inspector General of Police of the former State of Jodhpur in support of his contention. A copy of the Enrolment Form was produced by the State of Rajasthan itself on being called upon to do so at the request of the respondent. The learned District Judge has observed that it is not a certified copy. This fact, however, in my opinion does not make the copy of the Enrolment Form any the less authentic inasmuch as It was produced by the appellant State of Rajasthan itself in the trial court and must be Accepted as correct. However, the enrolment form does not show that the respondent was appointed by the Inspector General of Police himself A perusal of it shows that it is a printed form signed on behalf of the Inspector General of Police of the former Government of Jodhpur and forwarded to the Police Lines Officer, Jodhpur directing the latter to get the respondent medically examined and submit report for sanction. This enrolment form therefore does not show that the respondent was appointed by the Inspector General of Police of the former State of Jodhpur. Apart from this document the only evidence put on the record by the plaintiff in support of his stand is his own statement, which has, however, not been accepted as sufficient evidence by the learned District Judge for holding that the respondent was in fact appointed by the Inspector General of Police. The finding of the learned District Judge that the respondent has not succeeded in proving that he was appointed by the Inspector General of Police of the former State of Jodhpur in one of fact, and no ground has been made out for interfering with the same. Besides that it is not being denied on behalf of the respondent that after the formation of the present State of Rajasthan than the Superintendent of Police is the competent authority to appoint a Constable. It also appears that after the merger of the former State of Jodhpur with the present State of Rajasthan Shri Tarachand, Superintendent of Police, passed on order fixing the respondent in the Unified Set-up. In this view of the matter the finding of learned District Judge that the authority competent to dismiss the respondent was the Superintendent of Police, is correct. Now it remains to consider whether Shri P. C. Mishra was Officiating Superintendent of Police on 7-4-1960 when he passed the impugned order of dismissal ? It is common ground between the parties that Shri B R. Bishnoi was the Superintendent of Police Jodhpur at the relevant time. He was granted 536 days' leave with effect from 2. 3. 1960 and the Government of Rajasthan by its order dated 22-3-1960 appointed Shri P. C. Mishra, Assistant Superintendent of Police City, Jaipur with effect from 4. 3. 1960 to hold the charge of the on rent duties of the post of Superintendent of Police, Jodhpur. It further appears that by a subsequent order dated 11. 5. 1960, in partial modification on the previous order dated 22-3-1960 Shri Mishra was appointed to officiate as Superintendent of Police, Jodhpur with effect from 4-3-1960 during Shri Bishnoi's absence from leave. The learned District Judge has held that an Assistant Superintendent of Police holding the charge of the current duties of the post of Superintendent of Police, Jodhpur during the letter's absence on leave cannot he said to be an authority equal in rank to the Superintendent of Police, who was the competent authority to dismiss the appellant. He further held that the subsequent order of the Government dated 11-5-1960 appointing Shri Mishra as Officiating Superintendent of Police retrospectively with effect from 4-3-1960 could not validate the order of dismissal passed by Shri Mishra on 7. 4. 1960 when the latter was only holding charge of the current duties of the post of Superintendent of Police, Jodhpur. Learned counsel for the appellant has assailed this finding on the ground that in the Police Act, V of 1861 the words "district Superintendent" and "district Superintendent of Police" have been defined so as to include any Assistant District Superintendent or other person appointed by general or special order of the State Government to perform or any of the duties of a District Superintendent of Police under this Act in any District. He has argued that in view of this definition the Assistant Superintendent of Police must be considered equal in rank to the Superintendent of Police. Before dealing with this argument of the learned Deputy Government Advocate it would be useful to refer to 8. 7 of the Police Act also which provides that, "7. Subject to provisions of Art. 311 of the Constitution and to such rules as the State Government may from time to time makes under this Act, the Inspec-tor General, Deputy Inspector General, Assistant Inspector 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 remiss or negligent in the discharge of his duty or unfit for the same. " On the other hand learned counsel for the respondent submits that the provisions of the Police Act have to be applied subject to the provisions of Art. 311 of the Constitution, and the mere fact that in the Police Act the District Superin-dent of Police has been so defined as to include any Assistant District Superintendent is not at all sufficient to hold that the Assistant District Superintendent is equal in rank to the District Superintendent. It is submitted that no rules have been cited on behalf of the State Government to show that the rank of the Superintendent of Police and the Assistant Superintendent of Police is the same. In fact it is not the contention of the State that the Assistant Superintendent of Police is equal in rank to the Superintendent of Police but what is contended is that when Shri P. C. Mishra was appointed to hold charge of the current duties of the post of Superintendent of Police of Jodhpur, he must be deemed to be holding an equal rank with the post of Superintendent of Police, and that there is no difference between appointing an officer to hold charge of the current duties of a superior post of appointing to officiate in that post. After having carefully considered this contention I have come to the conclusion that it is not correct. In Ramratan vs. State of Madhya Pradesh (l) it was held that a person appointed to a higher post in an officiating capacity holds the rank of that post but there is difference between a person who is appointed to officiate on a higher post and a person who is appointed to be incharge of the current duties, in addition to his own. This difference seems to be well recognised for fiscal purposes as indicated by R. 35 (3) of the Rajasthan Service Rules which is reproduced below: "35 (3) The authorities competent to make the arrangements should issue clear orders in terms of Rule 35, R. S. R. and the Notes thereunder whether an appointment is an officiating appointment or merely an appointment to hold charge of current duties. If an "officiating appointment" is made for a period of less than 2 months, reasons should be recorded in the appointment order, and if pay is to be fixed at a rate lower than that admissible under R. 35, a specific order under item 7 of the schedule of Powers should be passed. " The crucial question is whether the Assistant Superintendent of Police, who is admittedly an authority subordinate to the Superintendent of Police and who is not formerly appointed to the post of the appointing authority either permanently or in an officiating capacity can while holding charge of the current duties of the appointing authority can exercise powers of dismissal in view of the inhibition contained in Art. 311 (1) of the Constitution. In my opinion he cannot. The reason is that a subordinate authority cannot be entrusted with the functions of the appoin-ting authority including the power of dismissal without giving to him the rank of that authority. In Cl. (1) of Art. 311 the word "subordinate" has reference to the rank and not to functions. In this view of the matter, there is no escape from the conclusion that by the order dated 22-3-1960 Shri P. C. Mishra, Assistant Supdt. of Police did not become a competent authority for the purpose of dismissing the respondent in lieu of the clear provisions of Art. 311 (1) of the Constitution. The learned Deputy Government Advocate however, laid emphasis on the subsequent order dated 11-5-1960 by which Shri Mishra was appointed to officiate as Superintendent of Police, Jodhpur retrospectively with effect from 4. 3. 1960 during the absence of leave of Shri Bishnoi, Superintendent of Police, Jodhpur. On the basis of this order it is argued that the order of dismissal dated 7-4-1960 passed by Shri Mishra must be deemed to have been passed by him as Officiating Superintendent of Police, Jodhpur. In Kapoorchand vs. State of Rajasthan (2) it was observed that the order recognising certain retirements already made by the appointing authorities erroneously and directing that such retirements be deemed to have been made under the order of the Government, was not valid inasmuch as it retrospectively validated the retirements made erroneously by the authorities, who were not competent to do so. In support of their view the learned Judges relied on an earlier case of this Court: Maharaja Shri Umaid Mills vs. Industrial Tribunal, Jaipur (3) wherein it was held that the amending notification of 5. 6. 1954 was invalid in so far as it sought to validate the proceedings between 1-4 1954 and 4. 6. 1954. In State of Mysore vs. Padmanahhacharya (4) in exercise of its powers under Art. 309 of the Constitution the Governor of Mysore made a rule that certain persons who had been wrongly retired must be treated to have been rightly retired. Their Lordships were pleased to observe that such a rule cannot be made under the proviso to Art. 309 of the Constitution, and further that the power of validating an order which was invalid when it was made does not flow from the power conferred on the Governor to make Rules regulating recruitment and conditions of services of persons appointed to services and posts in connection with the affairs of the State. The resultant position, therefore, inevitably boils down to this that the order of dismissal passed by Shri P. C. Mishra dated 7-4-1960 was not valid, and that the order dated 11. 5. 1960 cannot validate the incompetent order of dismissal passed by Shri Mishra, who was not competent to pass such an order before 11. 5. 1960 when he was actually appointed to officiate as Superintendent of Police, Jodhpur.
(3.) NO other point was pressed in support of the appeal. The result is that this appeal is without force and is hereby dismissed. But in the circumstances of the case, I leave the parties to bear their own costs. .;