Judgment:
Kanta Bhatnagar, J.
1. In this petition under Article 226 of the Constitution, the petitioner had challenged the legality of the order Ex. P. 2 dated May 26, 1984 by which he was placed under suspension and Ex P 4, the order dated March 19, 1985 by which the powers conferred upon the Director General & Inspector General of Police, Rajasthan, in exercise of powers under Sub-rule (1) of Rule 15 of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (here in after to be referred as 'the' Rules) were made effective retrospectively from December 6, 1979.
2. The petitioner was appointed by the Rajasthan Public Service Commission (for short 'the RPSC) on the post of Deputy Superintendent of Police in the cadre of the Rajasthan Police Service by Ex. P 1, the order dated June 6, 1977. Upon allegation of corruption he was placed under suspension by Ex. P 2 the order dated May 25, 1984 passed by the Director General and Inspector of Police Rajasthan.
3. The petitioner feeling aggrieved by, the order of his suspension has invoked the extra ordinary jurisdiction of this Court with the averments that, his Work had been found throughout satisfactory and there was no reason for suspending him That, the Director General & Inspector General of Police not being his appointing authority, could not have passed the order of suspension under Rule 13 of the Rules, the legality of the order has also been challenged on the ground that his head-quarter had been fixed and he has been directed not to leave his head-quarter without obtaining permission from the Deputy Inspector General of Police Rajasthan, Jaipur.
4. Notice at the admission stage was issued to the non-petitioners Mr. L.S. Udawat, Additional Government Advocate put in appearance on behalf of the non-petitioners. At the request of the learned Counsel for the petitioner and not objected by the learned Additional Government Advocate the petition was heard for final disposal.
5. Mr. Public Prosecutor Chaudhary, learned Counsel for the petitioner strenuously contended that the State Government is the appointing authority for the petitioner and the Director General and IG Police does not fall in the category of the authorities mentioned in Rule 13 of the Rules so as to enable him to exercise the power under that Rule Mr. Chaudhary referred to the Notification dated October 31, 1977 providing that in case of the State Services Officers the State Government is the appointing authority competent to place the officers of that cadre under suspension. The Notification makes it clear that the proposals for his suspension are to be moved by the Department of Personnel and Administrative Reforms to the Chief Minister of State through the Chief Secretary. According to Mr. Chaudhary the provisions contained in the Notification are of mandatory nature and as this procedure has not been followed in the present case the Order of suspension Ex. P 2 deserves to be quashed.
6. In the reply filed on behalf of the non-petitioners the details of the allegation against the petitioner necessitating the order of suspension have been given. It has been stated that the Circular dated October 31, 1977 is only a guidance to the authorities and is not of mandatory nature.
7. Mr. Udawat argued that vide Ex. P 4 the Director General and IG of Police has been authorised to impose penalties specified in Rule 14(1)(2) of the Rules on members of the Rajasthan Police Service and therefore, by virtue of the decision of the Government appearing at end of Sub-rule (1) of Rule 13 of the Rules he became authorised to place the petitioner under suspension. The order of suspension Ex. P 4 according to Mr. Udawat being in accordance with the provisions of the Rules should not cause any grievance to the petitioner.
8. This is an admitted position that the State Govt. is the appointing authority of the petitioner who belongs to the cadre of Rajasthan Police Service.
9. Rule 13 of the Rules deals with the suspension of a Government Servant and the portion relevant for the present purpose reads as under:
Rule 13. Suspension-(1) The Appointing Authority of any authority to which it is subordinate or any other authority empowered by the Government in that behalf may place a Government Servant under suspension;
(a) Where a disciplinary proceedings against him is contemplated or is pending; or
(b) Where a case against him in respect of any criminal offence is under investigation or trial:
Provided that where the order of suspension is made by a lower than the Appointing Authority, such authority shall forth with report to the Appointing Authority the circumstances in which the order was made.
10. Sub-rule (1) of this Rule envisages of three authorities empowered to place the Government Servant under suspension, (i) The Appointing Authority; (ii) the authority to which it is subordinate and, (iii) any other authority empowered by the State Government in that behalf.
11. The learned Additional Government Advocate has tried to bring the Director General and I.G. of Police in the third category, that is, the authority empowered by the Government in that behalf. Mr. Udawat could not bring to the notice of the Court any Circular which might have empowered Director General and L.G. of Police to proceed under Rule 13 of the Rules. Resort has been taken by Mr. Udawat to the proviso appended to this Rule. It has been urged that in case an authority not falling in the first two categories and without being specifically empowered to proceed under Rule 13 does so, the only requirement is that such authority should report forthwith to the appointing authority the circumstances in which the order of suspension was made. The argument has no substance The authority lower than the appointing authority has no power to proceed under Rule 13 in absence of specific authorisation by the State Government in that behalf. The term lower than the appointing authority in the proviso is governed by Sub-rule (1) of Rule 13. This proviso does not do away with the requirement of authorisation by the Government to an authority subordinate to the appointing authority. The proviso casts a duty on such authority to forthwith report to the appointing authority the circumstances in which the order of suspension was made.
12. The object of the proviso is not to give unbridled power to the authority lower than the appointing authority. The necessity for filing the report forthwith to the appointing authority, as envisaged by the proviso to Sub-rule (I) of Rule 13 appears to bring the facts of the case giving rise to the order of suspension to (he notice of the appointing authority which is expected to consider the matter in the light as to whether in the given circumstances, the drastic step of suspension of the delinquent officer was required or not.
13. The learned. Additional Government' Advocate submitted that in case the Director General & I.G. of Police is not considered to fall under the proviso of Rule 13 in absence of any specific Notification empowering him to proceed under Rule 13, the decision of the Government of Rajasthan appearing after the proviso to Sub-rule (1) of Rule 13 read with the Notification Ex. 4 would make the order of suspension of the petitioner in accordance with Rule 13 of the Rules. It has been emphatically stressed that the Notification Ex. 4 dated March 19, 1985 vesting the power in the Director General & I.G. of Police being made effective retrospectively from December 6, 1979 legalises the order Ex. P/2 passed on May 25, 1984 even if it might not have been so initially.
14. Rule 15 of the Rules provides to who would be the disciplinary authority with respect to the State Services and subordinate and ministerial Services of the Government of Rajasthan. The Rule mentions that in respect of the State Services the Government or the authority specially empowered by the Government in that behalf in respect of the Subordinate and Ministerial Services the Head of Department or the authority specially empowered by the Head of the Department with the approval of the Government and in respect of Class-IV Services, the Head of the Office shall be the disciplinary authority.
15. By virtue of Ex. P/4, dated March 19, 1985 the State Government in exercise of the powers under Sub-rule (1) of Rule 15 empowered the Director General and I.G. of Police Rajasthan w.e.f. December 6, 1979 to impose on members of Rajasthan Police the penalties as specified in Rule 14(1) & (2) of the said Rules.
16. The decision of the Government of Rajasthan referred to above appearing after the proviso to Sub-rule (1) of Rule 13 reads as under:
Government of Rajasthan Decision's
In exercise of the powers conferred by Sub-rule (1) of Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 the State Government hereby empowers the authority competent to impose any one of the minor penalties specified in Rule 14 of the said rules to place a Government Servant under suspension. Upon reading Ex. P/4 dated March 19, 1985 with the aforesaid decision, it becomes clear that the Director General and I.G. of Police empowered by the Notification Ex. P/4 to impose penalties No (1) and (2) of Rule 14 of the Rules was by virtue of this decision also empowered to place Member of Rajasthan Police Service under suspension.
17. The learned Additional Government Advocate does not dispute the position that there was no order analogous to Ex. P/4 in existence on May 25, 1984 when the petitioner was placed under suspension vide Ex. P/2. His contention however, is that Ex. P/4 has been made effective retrospectively from December 6, 1979 and therefore, the case of the petitioner is covered by that circular. To substantiate his argument that such an order can be made effective retrospectively Mr. Udawat referred to the case of B.S. Vedra v. UOI : (1970)ILLJ499SC where in their Lordships, with reference to the interpretation to the proviso to Article 309, observed as under:
The proviso to Article 309, clearly lays down that any rules so made shall have effect subject to the provisions of any such Act. Thus if the appropriate Legislature has passed an Act, under Article 309 the rules framed under the Proviso, will have effect, subject to that Act but, in the absence of any Act, if the appropriate Legislature on the matter the rules made by the President, or by such person as he may direct are to have full effect, both prospectively and, retrospectively.
18. The principle enunciated in the above referred case is not applicable in the present case Ex. P/4 is not a Rule. It is an administrative order passed in exercise of the powers conferred by Sub-rule (I) of Rule 15 of the Rules.
19. There is force in the contention of Mr. Chaudhary that administrative orders cannot be made effective retrospectively.
20. In the case State of Haryana v. Dev Dutt 1970 SLR 776. the question of retrospectively of an administrative order came for consideration and it was held that administrative order takes effect from the date it is communicated to the person concerned.
21. Similar principle was enunciated in the case of Harbhajan Singh vis. State of Punjab 1975 SLWR 483 and it was held that the administrative or executive order is effective from the date of communication or otherwise published in appropriate manner.
22. The administrative orders are made to meet with the exigencies of a particular time or situation. They do not fall in the line of Rules and Regulations framed under any Act or the Constitution of India.
23. In this view of the matter Ex. P/4 dated March 19, 1985 being an administrative order cannot be held to be effective, from December 6, 1979 so as to empower the Director and I.G. of Police to take action against the petitioner under Rule 13 of the Rules in the year 1984.
24. In view of the above discussion I am inclined to hold that the order Ex. P/2 placing the petitioner under suspension was not passed by any of the authorities in Rule 3 of the Rules and therefore, it is an illegal order and deserves to be quashed. Because of the petitioner succeeding on this point, the ground taken in the writ petition regarding the illegality in fixing the headquarter of the petitioner during the period of suspension and restraining him from leaving the head-quarter without obtaining the permission of the Deputy Director of Police, Rajasthan Jaipur, during the period of suspension, require no finding nor the learned Counsel for the petitioner pressed those points.
25. Consequently, the writ petition is allowed. The order Ex. P/2 date May 15,1984 placing the petitioner under suspension and the Notification Ex. P/4 dated March, 1985 to the extent of its retrospective effect are quashed. It is however made clear that this order will not preclude the State, Government to take any action against the petitioner in accordance with the law. In the circumstances of the case cost are made easy.