Arun K. Mukherjea, J.
1. The present appeal arises out of circumstances which are, one may think, rather odd. The petitioner Rajat Kanti Sarmadhikari is a typist working in the police department of the Government of West Bengal. At the time of making the petition he was posted In the District Intelligence Branch under the Superintendent, Government Railway Police, Sealdah who is the appellant No. 3 and who initiated1 certain disciplinary proceedings against the petitioner. The petitioner states that his appointing authority as well as his dismissing authority is the Special Superintendent of Police (I) in the Intelligence Branch and the Criminal Investigation Department of the Government of West Bengal i.e. the appellant No. 2. The petitioner claims, therefore, that the Superintendent, Government Railway Police had no jurisdiction to draw up disciplinary proceedings against him. The short point involved in this appeal is, therefore, whether the appellant No. 3 is the appointing authority of the petitioner. One would normally have expected 'this matter to be decided by the Head of the Police Department, viz., the Inspector General of Police, under whom unquestionably are placed both the Superintendent, Government Railway Police and the Special Superintendent of Police, Intelligence Branch and the Criminal Investigation Department. Instead, the matter has come up to this Court under the writ jurisdiction.
2. To understand this case and the implications of the question raised, it is necessary that the salient facts of the case should he set out in further details. On January 11, 1957 the petitioner was appointed for the first time as a clerk in the office of the Superintendent of Police, Malda. In 1958 there were certain vacancies In the posts of temporary typists In the District Intelligence Branch of Malda and a departmental test was held for recruitment of suitable candidates for such posts. The petitioner applied for appointment to one of these posts., and was actually given an appointment as a result of the departmental test. The appointment which took effect from February 15, 1958 is stated by the petitioner to have been made by the appellant No. 2. The petitioner was posted at the office of the District Intelligence Branch, Sealdah and worked there from February 15, 1958 to March 1, 1960. On March 1, 1960 the petitioner was appointed as a probationary typist, in one out of three posts of typists sanctioned by the Government as permanent posts. The petitioner states that this appointment was also made by the appellant No. 2. It appears that while working as a temporary typist in the District Intelligence Branch, the petitioner had sought the permission of the Deputy Inspector General of Police, Intelligence Branch and also the appellant No. 2 to prosecute studies tor appearing in the B. A. Examination by attending night classes. Such permission was given to him by order no. I. B. Memo No. 20132/4/58-Staff dated 29th June 1959 and the petitioner joined a 'Night College' 'and completed his studies for two years. Troubles started sometime in March, 1961 when the petitioner applied for earned leave for a month. The application was made to the appellant No. 2 though the application was submitted through the appellant No. 3. The leave was granted by the appellant No. 2. The appellant No. 3 was not, however, satisfied that the application for leave on medical ground was bona' fide, he suspected that the real purpose of asking for the leave was to prepare for the B. A. Examination. The appellant No. 3 directed the petitioner to join his duties immediately and threatened him with disciplinary action in the event of his failure to join his duties. The petitioner resumed his duties only on April 7, 1961, i.e., after the expiry of the leave period. On April 7, 1961 the petitioner submitted another application for a further eleven days' earned leave for the purpose of appearing at the B. A. Examination which was to be held on and from April 10, 1961. This application was addressed to the Deputy Inspector General of Police, Intelligence Branch and was submitted through the appellant No. 3. The petitioner stated in that application that net was going to sit for the examination in anticipation of the leave and he requested that the permission if granted should, be communicated to him over the telephone. On April 8, 1951 the appellant No. 3 issued an order directing the petitioner not to avail of the leave applied for with effect from April 10, 1961 in anticipation of orders and also Directed him to attend office daily and punctually on the pain of disciplinary proceedings to be taken against him on his failure to comply with the order. Upon receipt of the order the petitioner addressed a letter to the appellant No. 3 asking for permission to see the Deputy Inspector General of Police, Intelligence Branch, Criminal investigation Department, West Bengal. This prayer, however, was not granted. The petitioner, thereafter, absented himself from office from April 10, 1961 for the purpose of appearing at the B. A. Examination. On April 15, 1961 the petitioner was served with an order of immediate suspension. The order is set out hereunder: 'No. P. 1054 dated 15-4-61.
Shri Rajat Kanti Sarmadhifcari Typist, D.I.B. Sealdah is placed under suspension pending enquiry into his conduct with effect from 154-61 A.M. He will draw one anna as Subsistence Allowance as he has asserted the office without permission. He is directed to attend office once daily at 11.00 hours and report personally to the H.A./D.i.b. Sealdah.
Sd. K.C. Bose, 15-4-61,
Superintendent
Government Railway Police
Sealdah'
3. The petitioner contends that this order was beyond the jurisdiction of appellant No. 3 since the appellant No. 2 is the exclusive controlling authority so far as the petitioner is concerned and was the only authority competent to make an order of this kind against the petitioner. The petitioner made certain representations against this order to the Deputy Inspector General, Intelligence Branch, sending one copy through the appellant No. 3 and also sending an advance copy direct to the said Deputy Inspector General (hereinafter referred to as the D. I. G., I. B.) The appellant No. 3 by an order dated 20th June, 1961 refused to forward that representation to the D. 1.6. I. B. and asked for a further explanation from the petitioner for making a direct communication with the D.I.G., I.B. The order reads as follows:
'Withheld as there is no provision for appeal against an order of suspension. Inform petitioner and call for his explanation why disciplinary action will not be taken. for making this direct communication with the D. I. G., I.B. C.I.D.'
4. In the meantime on June 17, 1961 another order was served on the petitioner which reads as follows :
'No. P. 1742
_______
17-6-61.
Typist Shri Rajat Kanti Sarmadhikari is directed to show cause why disciplinary action will not be taken against him for sending a copy of his petition dated 10-6-61 for appointment as an Assistant in the Intelligencer Branch/D. I. B. to the D. I. G., I.B. direct after he was refused permission to apply for appointment as an Assistant in the I.B./D.I.B.'
5. This order apparently was passed In relation to a letter sent by the petitioner to the D.I.G., I. B. on 16th June, 1961. The relevant letter of the petitioner does not appear to have been annexed to the petition but, apparently, it was an application for permission to apply for the post of assistant in the Intelligence Branch, Criminal Investigation Department, West Bengal.
6. About the same time there was another parallel development which also led to the issue of a further charge sheet on the petitioner and also, ultimately, an order discharging the petitioner from his service. The circumstances are peculiar and have a lot of bearing on this case. On September 16, 1961 the appellant No. 3 served an order on the petitioner in the following language:
'The period of probation of Shri Rajat Kanti Sarmsdhikary, Probationary Typist, D. I. B., Sealdah, G. R. P., is extended with effect from 1-3-61 to 30-9-61 for unsatisfactory work and conduct in office,'
Apparently, the appellant No. 3 thought that the petitioner's period of probation which was to expire on 1st March, 1961 required extension with effect from that date and that the petitioner was not to be considered as confirmed in his post on the expiry of the period of probation. Thereafter, two days later, the appellant No. 3 served another order on the petitioner in which after enumerating various allegations against the petitioner the appellant No. 3 tells him that the petitioner is liable to be discharged from the probationary, service on account of those allegations. He is further told that such discharge is not a punishment within the meaning of Rule 7 of the Bengal Subordinate Service Rules, 1936 and that Article 311 of the Constitution of India could not be applicable in this case. The petitioner is further told that no appeal would lie against any order of discharge for unsatisfactory conduct and unsuitability during the probationary period. It is only after such introductory admonitions that the appellant No. 3 invites the petitioner to make any representations to explain his conduct as he may like to make. This letter of 18th September, 1961 is a very curious document and it will be appropriate to quote the last three paragraphs of that letter here:
'You are accordingly liable to discharge from the probationary service and I am to point out to you that such a discharge is not a punishment as contemplated in Rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936 which is in force, vide Article 313 of the Constitution of India and that the provisions of Article 311 of the Constitution of India are not applicable in this case.
I am further to point out to you that no appeal liesagainst an order of discharge for unsatisfactory conductand unsuitability during your probationary period under Rule 11 of the Bengal Subordinate Services (Disciplinary andAppeal) Rules, 1936 which again is in force, vide Article 313of the Constitution of India.
Before you are discharged from probationary serviceyou are hereby directed to make any representation which you have not already made relating to the conduct referred to in the aforesaid 3 paragraphs to explain your aforesaid conduct within 7 days of the receipt of this order for my consideration. You are allowed to take copies of relevant papers.'
7. Immediately after this letter had been served on the petitioner the petitioner sent a lawyer's letter to the appellant No. 3 challenging his jurisdiction to pass either the order of suspension or the order extending the petitioner's probationary period or the 'proposed order for discharge' by which reference was' apparently made to the letter of 18th September, 1961. Soon thereafter on or about the 29th September, 1961 the petitioner made the present application under Article 226 of the Constitution.
8. Banerjee, J. who heard the application quashed the order of suspension as well as the order dated 18thSeptember, 1961 and further passed an order restrainingappellant No. 3 from taking any disciplinary action or action for the discharge of the petitioner from his probationership. The order was made 'without prejudice to any action that the appointing authority of the petitioner may like to take against the petitioner in respect of the allegations against him.' The appellants have now appealedagainst that order of Banerjee, J.
9. Only one point was argued in this appeal, viz.,who is the appointing authority of the petitioner, the appellant No. 3 or the appellant No. 2 The learned Standing Counsel appearing for the appellants made it quiteclear that once we come to the decision that the appellant No. 2 is the appointing authority of the petitioner there is an end, of the controversy. He did not, for instance, want to argue that in the event of appellant No. 2being found to be the appointing authority that need not necessarily prevent the appellant No. 3 from initiating disciplinary proceedings against the petitioner in the shape of suspending him as a preliminary step to appropriate disciplinary action by an authority competent to doso or of serving a show cause notice upon him. We put this question to the learned Standing Counsel repeatedly and in fact gave him full opportunity to think and considerall the legal aspects of the matter. We adjourned that appeal at his request in order that he could have time to re-consider this point. The learned Standing Counsel, however, confined the controversy to one issue only, namely, who is really the appointing authority of the petitioner. He very frankly conceded that if the appellant No. 3 was found not to be the appointing authority of the petitioner then the two orders impugned by the petitioner should be quashed. This has narrowed down the scope of controversy in this case considerably and we proceed to deal with the question at issue accordingly.
10. Who is the appointing authority of the petitioner is, in our opinion, more a question of fact than a question of law. But the learned Standing Counsel argued that as the question of appointment is governed by statutory rules this is really a question of law. The learned Standing Counsel referred to various rules and regulations which deal with this subject. He also referred to the organizational set up of the West Bengal State Police in this connection. But before considering his arguments on this subject, it is necessary for us to refer to the pleadings of the parties in this connection.
11. According to the petitioner, he was appointed as a probationary typist with effect from March 1, 1960 by the appellant No. 2 who, he says, is the appointing authority and also 'tho only authority in controlling the services' of the petitioner. The appointment was mada against a post sanctioned by Government Order No. 5171 dated 4th December, 1959. The petitioner states that the appellant No. 2 'being appointing and controlling authority is the only authority competent to confirm and/ or otherwise discharge' the petitioner in his services, According to the petitioner though he was under the controlling authority of the appellant No. 2, he was 'attached in the matter of his posting, to the office' of the appellant No. 3. The petitioner further states that in the matter of leave, transfer, promotion, confirmation and/or discharge the petitioner not only remained but still is within the exclusive jurisdiction and control of the appellant No. 2. The petitioner points out that the appointment letter issued to him reserves the right of confirmation of the petitioner to the appellant No. 2. The letter of appointment has been annexed to the petition. This letter which is the subject matter of some controversy should be set out hereunder:
'Order No. 51/1960.
Temporary Typist Shri Rajat Kanti Sarmadhikary of D. 118, Sealdah, having been declared medically tit and his age being within the prescribed limit at the time of his first appointment in Government service, is with effect from 1-3-60 absorbed in one of the three posts af typists, sanctioned permanently in Government Order No. 5171 F.I dated 3/4-12-59.
He will remain on probation for one year with effect from the date of his absorption.
Sd. R.N. Chatterjee,
Spl. Supdt. of Police, I. B.,
E. B., Calcutta.
Intelligence Branch, C. I. D.
13, Lord Sinha Road,
Calcutta, the 25th March
1960
Memo No. 9938/4-58/Staff.
Copy forwarded to Shri K.C. Bose, I. P. S., Superintendent Railway Police, Sealdah for information and necessary action, with reference to his Memo No. 716, dated 7-3-60 on completion of the probationary period a further report may be submitted commenting on his work for confirmation.'
12. If this letter be treated as the letter of appointment, it is clear that the Special Superintendent of Police, i.e. appellant No. 2 is the appointing authority. The last portion of the special endorsement addressed to the Superintendent, Railway Police, Sealdah, indicates that on completion of the probationary period the confirmation was to be ordered by the appellant No. 2 and the function of the appellant No. 3 viz., the Superintendent, Railway Police, Sealdah, was merely to submit a report commenting on the petitioner's work. It may be mentioned in this connection that the learned Standing Counsel challenged all throughout the proceedings the petitioner's contention that this order No. 51/1960 by the Special Superintendent of Police, I. B., was the actual order of appointment of the petitioner.
13. The appellant No. 3 in his affidavit affirmed on 21st December 1961 deals with these various allegations of the petitioner. He admits in that affidavit that the appellant No. 2 'was the authority who appointed the petitioner as one of the typists on probation.' He also admitted that 'such appointments of typists on probation is usually made' by the appellant No. 2
'in all cases but after such appointment the different persons who are to be appointed on probation are posted under different District Superintendents of Police and thereupon the authority who has the power to punish such typists on probation respectively placed under such District Superintendents are such District Superintendents respectively.'
Throughout his affidavit the appellant No. 3 repeats not in one place but in several places that the petitioner had been appointed by the appellant No. 2 and his only case was that he was the controlling authority regarding the petitioner and that he had the authority to discharge the petitioner during the period of probation. He claimed that 'in matters of leave, transfer and promotion' the authority was the Deputy Inspector General of Police Intelligence Branch and not appellant No. 2 and 'in the matter of confirmation and discharge' he, the appellant No. 3 was the authority.
14. In his reply to the affidavit-in-opposition of the appellant No. 3 the petitioner in his affidavit dated 11th January, 1962 reiterates his contention that his appointing authority was the appellant No. 2. He further states that he is a typist in the District Intelligence Branch at Sealdah and that it is 'only under exigency of administration that the District Intelligence Branch Office' of the appellant No. 2 is located in the same office as that of the appellant No. 3. He repeats that the appellant No. 3 had no power or jurisdiction to terminate the petitioner's service by way of disciplinary action. In support of his contention he refers to Rule 12 of the Intelligence Branch Manual framed by the Government. Rule 12 in its entirety was annexed to the affidavit of the petitioner. Only a few extracts which are relevant for our purpose are set out hereunder:-
'Appointments in the posts of typists in the Intelligence Branch District Intelligence, Office shall be madeby the Special Supdt. of Police (I) Intelligence Branch.
(II) All permanent appointments In the I. B./D. I. Bs. shall be made on probation for one year in the case of promoted assistants typists and accounts including those, coming from police offices under the I. G. P. (Including the PD) from posts with an equal or lower scale of pay, and two years in the case of those who have been recruited direct. On the expiry of the period of probation, and subject to their work being satisfactory probationers snail be confirmed by the Special Supdt of Police (I), Intelligence Branch.'
15. The petitioner also annexes a letter dated 7th October, 1961 addressed by the, Assistant Inspector General of Police, West Bengal to the Deputy Inspector General of Police, I. B., West Bengal, on the subject of the discipline and punishment of District Intelligence Branch clerks and typists. This letter is very important for our purposes and is set out hereunder in extenso:-
'Copy of letter No. 9160-A/A. 1557-61 dt. 7-10-61 from the Asst. Inspector General of Police West Bengal to. the Dy. Inspector General of Police, I. B., West Bengal.
Sub Discipline and punishment of District Intelligence Branch Clerks and Typists.
Ref:- Your letter No. 20846 dated 15-6-61.
I am directed to inform you that as the Spl. Superintendent of Police, I. B., West Bengal, is the appointing authority, the District Superintendent of Police has no power to initiate proceeding against D.I.B. Assistant under him. In such cases the Special Supdt. of Police, I. B., West Bengal, should initiate proceedings and send it to the Dist Supdt, of Police concerned for enquiry Into It who, after recording his finding will send the proceeding back to the Spl. Supdt. of Police, 1. B. for final orders.
No. 9161/1 (26) A.
Copy forwarded to all Supdt. of Police and others for information and guidance.
sd. D. Dhar,
Asstt. Inspr. Genl. of Police
West Bengal.'
16. These were the pleadings with which, the parties appeared before Banerjee, J. It appears, however, that at the time of hearing of the application the appellant No. 3 completely changed his front and made out a new case which was not only different from the case that had been made out in the affidavit of appellant No. 3 but was, In fact, contradictory to it. Banerjee, J, by an order dated 5th April, 1962 permitted the appellant No. 3 to mates a fresh affidavit. The appellant No. 3 thereupon filed an affidavit affirmed by him on 18th April, 1962. In this supplementary affidavit the appellant No. 3 after referring to the Police Regulations, Bengal, and giving an account of the organisational set up of the Police Department In West Bengal makes the following statement about the circumstances in which the petitioner was appointed;-
(a) The sanction for the post to which the petitioner was appointed is contained in Government of West Bengal, Home (Police) Department Memo No. 5171/PL, dated 3/4th December, 1959 read with Memo No. 12026/21-F(S) 8/58 dated 10-12-1959 of the Assistant Inspector General of Police, West Bengal. This latter 'memo' shows the allotment of the staff sanctioned by the previous order. The memoranda are to be found as included In Annexure 'A' to the said affidavit.
(b) The petitioner's post was 'the post of a typist of the District Intelligence Branch staff in a Police District' and not 'an appointment in the Intelligence Branch staff.'
(c) No formal appointment letter was given by the appellant No. 2, the Special Superintendent of Police (I),intelligence Branch, Criminal Investigation Department. On the contrary there is an order contained in the service book of the petitioner to the following effect;-
'Temporary typist Shri Rajat Kanti Sarmadhikary of 0. I, B, Sealdah, having been declared medically fit and his age being within the prescribed limit at the time of this first appointment in Government service, is with effect from 1-3-60 absorbed in one of the three posts of typists sanctioned permanently in G. O. No. 5171/PL dated 3/4-12-59.
He will remain on probation for one year with effect from the date of his absorption, (I. B. order No. 51/1960 forwarded in No, 9938 dated 25-3-60) (I). 0. No. 716 dated 31-3-60).
Sd. P.A. Mondle,
for Superintendent Government
Railway Police, D. I. B., Sealdah.'
(d) The said order of appointment recorded, in theservice book of the petitioner was also recorded in that district order Book of the appellant No. 3 which is kept pursuant to regulation 911 of the Police regulations. On the basis of these statements of facts the appellant No. 3 contends:-
(a) the petitioner is a member of the West Bengal Subordinate service;
(b) the petitioner is a member of the clerical staff within the meaning of West Bengal Service Rules, 1948;
(c) the petitioner comes within the definition of District Police;
(d) the petitioner was not appointed in the Criminal Investigation Department of the Intelligence Branch within the meaning of subordinate service rules;
(e) under Rule 5 of the Subordinate Service Rules all first appointments to the subordinate service not included in the schedule to the said rules are to be made by the head of the office in administrative charge of the service or post. The appellant No. 3 is the head of the office In administrative charge of the Sealdah G. R. P., District Intelligence Branch Staff;
(f) the appellant No. 3 is the person who is entitled to and who did appoint the petitioner in the post of a typist in the District Intelligence Branch of the Sealdah Government Railway Police;
(g) the appellant No. 3 is the authority empowered to impose penalties on the petitioner.
17. The petitioner affirmed and filed an affidavit in reply to this supplementary affidavit of appellant No. 3. I may as well give a resume of the more important averments of the petitioner in this affidavit;-
(a) The petitioner's appointment as a typist was notan appointment to the post of a subordinate clerk withinthe meaning of Bengal Subordinate Services (Discipline andAppeal) Rules, 1936;
(b) The District Intelligence Branch does not come within the category of District Police Offices within the meaning of the Schedule to the said Rules. It is nothing but a part and parcel of 'Criminal Investigation Department, which includes Intelligence Branch within the meaning 'of Regulation 6 of Police Regulations';
(c) The petitioner's appointment as a typist in the Intelligence Branch was an appointment to the ordinary establishment and not an appointment to a police establishment within the meaning of Section 2 of the Police Act and Chapter X of the Police Regulations. The petitioner is governed by the service rules of West Bengal applicable to the subordinate services;
(d) The appointing authority of the petitioner 'under Rule 4 of the Bengal Subordinate Sea-vices (Discipline and Appeal) Rules, 1936 read with the schedule annexed thereto is the Special Superintendent, Intelligence Branch, Who was previously the Deputy Inspector General, Criminal Investigation Department, Intelligence Branch;
(e) The petitioner relies on what he describes as the Government order No. 9160S/A 1557-61 dated 7th October, 1961 in which the Assistant Inspector General of Police informed the appellant No. 3 that the Special Superintendent of Police, I. B., West Bengal is the appointing authority in regard to discipline and punishment of District Intelligence! Branch clerks and typists and that the District Superintendent of Police has no power to initiate proceedings against them. I have already set out this order in extenso;
(f) The petitioner refers to the initial order of appointment by which he had been appointed as a temporary typist in the District Intelligence Branch prior to his appointment in the permanent cadre as a probationer. That order was as follows:-
'Order No. 26/1958
Clerk Sri Rajat Kanti Sarmadhikari of police office Malda is with effect from 15-2-58 a.m. appointed a temporary typist in the D. I. B. at Sealdah on the usual terms and conditions. He will fill up one of the temporary posts of typists sanctioned in G. 0. No. 3879 P 1/P4/56 dated 26-9-57/18-12-57 in the D. I. B. Typists Cadre.
Sd. P. N. Banerjee
Special Superintendent of
Police (I),
I. B. West Bengal, Calcutta'.
(g) The entry in the service book, according to the petitioner, was a mere formal record of the order of appointment made by Intelligence Branch.
18. The question as to who is the appointing authority of the petitioner has two aspects: firstly, who in fact appointed him to his present post and, secondly, who in law should be the appointing authority. On the first question I have no manner of doubt that it was the special superintendent of Police, Intelligence Branch, i.e. to say, the appellant No. 2 who appointed him. Order No. 51/1960 passed by appellant No. 2 on 25th March, 1960 is the clearest possible evidence in support of this fact. That order is in the following terms:-
'Temporary typist Shri Rajat Kanti Sarmadhirkan..................is with effect from 1-3-60 absorbed in oneof the three posts of typists sanctioned permanently in Government Order No. 5171-F(1) dated 3/4-12-59. He will remain on probation for one year with effect from' ths date of his absorption.'
19. I do not see how this can be construed as a mere communication of the sanction to the appellant No, 3 and a request to him to make the order of appointment. This order was indeed communicated to the superintendent, Railway Police, Sealdah, by Memo No. 9938/4-58/Staff of 25th March, 1960. But the memorandum Itself shows that only a copy of the order was forwarded for information and necessary action. If it had been intended that the appellant No. 3 Shri K.C. Bose was to make the appointment then appellant No. 2 would have addressed a letter to him and sent the letter in original to the appellant No. 3 requesting him in clear terms to appoint the petitioner, and in that case there would have been no point in describing the communication as an 'order'. The fact that only a copy is forwarded to appellant No. 3 proves conclusively that the order had already been passed and only a copy of that order was being sent to appellant No. 3. Besides, the last portion of the memorandum endorsed to appellant No. 3 contains the following words:-
'On completion of the probationary period a furtherreport may be submitted commenting on his work for confirmation,'
This shows that the appellant No. 3 was not the authority for confirmation. He was only expected to submit a report to the appellant No. 2 who was the confirming authority. I do not see how in the face of this memorandum and the order it is at all possible for the appellant No. 3 to contend that he was the appointing authority. In his affidavit dated 21st December, 1961 the appellant No. 3 admitted that the appellant No. 2 was the authority who appointed the petitioner as one of the typists on probation.' I am perfectly certain that that is the real fact. The subsequent correction of this position by Appellant No. 3 in his affidavit of 18th April, 19G2 In which he seeks to make out a case that he was the appointing authority is, in my opinion, a complete subversion of fact and totally unacceptable, it is surprising that the Appellant No. 3 in his later affidavit goes to the length of suggesting that the formal order of appointment is contained in the service book of the petitioner. The statement of appellant No. 3 in paragraph 4(d) of his later affidavit is, of course, slightly vague and ambiguous. He says then that 'No formal appointment letter appears to have been given' by the appellant No. 2 'to the petitioner'. He does not make bold to make a clear and categorical statement that no formal order was passed by Appellant No. 2. I am constrained to say that this statement Is deliberately vague in order that it could be possible for The appellant No. 3, if necessary, to prevaricate and say that all that he meant to say by this statement is that the formal order of Appellant No. 2 dated 25th March, 1960 had not been communicated to the petitioner. The learned Standing Counsel appearing for the appellants, however, was fair enough to put his case without any vagueness and ambiguity. He clearly argued that the document of 25th March, 1960 did not realiy constitute an order of appointment. He argued on the other hand that the real formal order was contained in the Service Book of the petitioner. This he did on basis of another vague and ambiguous statement of Appellant No. 3 in his later affidavit where the Appellant No. 3 states:
'On the contrary I say that the service book of the petitioner contains the following order............'. As 1 have already sat out the relevant contents of the service book, I do not repeat it here. 1 cannot help noticing that the Appellant does not clearly state that the entry in the service hook constitutes the order of appointment He uses the word 'contains'. This again, in my opinion, is a deliberate attempt to mislead and is a species of 'suggestion falsi'.
20. Confronted with this position the learned Standing Counsel took recourse to another argument. He contended that in law the appellant No. 3 had been the- appointing authority and that the petitioner had not been properly appointed at all. This point that the petitioner's appointment is invalid had not been taken at any Stage before and we are: not prepared to entertain this suggestion at this stage. But at the same time it is necessary to examine who in law is the appointing authority of the petitioner, because it may be contended that he would be the person who would be entitled to dismiss him. We now apply ourselves to this task.
21. It was argued on behalf of the appellants that for finding the law on the subject we have to look to thp provisions of the Police Regulations and the Bengal Subordinate Services (Disciplinary and Appeal) Rules, 1936. I shall refer to them hereinafter as the Regulations and the Rules respectively. Regulation 4 of the Police Regulations divides the State of West Bengal (excluding the city and suburbs of Calcutta) into police administrative areas known as 'Ranges'. The Ranges are again divided into Police Districts which in turn are divided into Sub-divisions. Thus, a number of Police Sub-divisions combine to make a Police District which, it may be noted, ordinarily coincide with the District for general administrative purposes. Several Districts combine to make a Range. The Inspector General of Police is the Administrative Head of the Police throughout the State of West Bengal (except for the city and suburbs of Calcutta). The Ranges are each in charge of a Deputy Inspector General and the Districts each In charge of a Superintendent. The Railway Police Is regarded as a separate District and one Superintendent is in charge of the Railway Police District. The branches of the Bengal Police and the administration thereof as welt as the hierarchy of officers in charge of the! administration of the different areas are all given in Regulations 4, 6 and 7. I set cut the relevant portions of these regulations below:-
'4. The province is divided into the following police administrative areas :-
(i) the Range, consisting of a group of districts;
(ii) the District, which is normally divided Into subdivisions. Railway Police districts are not normally so divided;
(iii) the Subdivision, containing one or more police-circles;
(iv) the Circle, consisting of a group of police-stations;
(v) the Police-station, which is divided into unions. The police-station as defined in Section 4(1)(s) of the Code of Criminal Procedure, 1898, is the unit of Investigation. Outposts exist in certain police-stations, as subordinate police posts, but they are not Investigating centres.
6. Police officers stationed in Bengal may be-
(i) superior administrative officers, viz., the Inspector-General or a Deputy Inspector-General or they may be-attached to:-
(ii) the District Police;
(iii) the Railway Polices
(iv) the Police Training College;
(v) the Criminal Investigation Department, which Includes the Intelligence Branch; or
(vi) the Inspector-General's staff
7. (a) The administration of the police throughout the general police district is, under Section 4 of the Police Act, 1861, vested in the Inspector-General. The areas and posts shown in regulations 4 and 5 are controlled by officers as follows:-
(i) the Range--a Deputy Inspector-General.
(ii) the District--a Superintendent. In certain districts he is assisted by one or more Additional Assistant or Deputy Superintendents. There are also Superintendents in charge of Railway Police districts.
(iii) The subdivision--a Subdivisional Police Officer,who may be either an Assistant or a Deputy Superintendent.Subdivisional Police Officers are posted only to importantsubdivisions, etc. etc.'
22. The Criminal Investigation Department is, under Regulation 9, administered by a Deputy Inspector-General. The functions and the special duties allotted to this Department are different from the general police administration and they are described in a separate chapter of the Regulations. Regulation 12 deals with the organisation of the District Police Force and reads as follows:-
'12. The force allotted to each district is organised broadly to provide staff for police-stations (including subordinate police posts), Courts, Town Police, Special Armed Force and special posts, such as the District Intelligence Branch, Detective Department (where such exist) and certain posts involving clerical duties...........'
23. It is clear from Regulation 12 that the District Intelligence Branch of the Detective Department of a District is under the control of the respective Police. Superintendent. Regulation. 40 gives power to the Superintendent of Police to delegate many of its functions to the Additional Superintendent. But he cannot delegate the work of a District Intelligence Branch to an Additional Superintendent except in a District where an Additional Superintendent is specially sanctioned for that Branch (Regulation 40 (c) (iii),) Regulation 47 deals with inspections. Clauses (c) and (d) of that Regulation are as follows:-
'(c) The beputy Inspector-General, Criminal Investigation Department, shall inspect crime work In districts as ordered from time to time by the Inspector-General withreference to the incidence of organised crime.
(d) The Deputy Inspector-General in charge of the Intelligence Branch, Criminal Investigation Department or his Special Superintendent, shall inspect the working of the arrangements for the collection of intelligence in every district once in two years.'
24. Regulation 768 deals with appointments of clerks in the office of Superintendents. Regulation 768 (b) provides : 'Appointments of subordinate clerks shall be made by Superintendents.' Regulation 879 provides:
'In matters of discipline, punishments and appeals, clerks of the Police Department shall be governed by the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936.'
25. This brings us to the provisions of the Rules.. Rules 4 and 5 provide:-
'4. All first appointments to the services or posts included in the Schedule to these rules shall be made by the authority mentioned in column 2 of that Schedule.
5. All first appointments to the Subordinate services not included in the schedule to these rules shall be made by the head of the office in administrative charge of the service or post.'
26. There is a schedule to the Rules which shows in respect of each service or post the following particulars (a) authority empowered to appoint; (b) authority empowered to impose penalties and penalties which he may impost and (c) appellate authority. 1 set out below the portion of the Schedule which is relevant for our purposes:-
Title of service or post.Authority empowered to appoint.Authority empowered to impose penalties.Appellate Authority.
Criminal Investigation Department and Intelligence BranchSuperintendentDeputy Inspector General of Police.Deputy Inspector General of Police.Inspector General of Police.Upper and lower Division Assistants. Accountants, Stenographer and Typists.
Assistant to the Deputy Inspector General, Criminal Investigation Department or Special Superintendent. Intelligence Branch.
Assistant to the Deputy Inspector General, Criminal Investigation Department or Special Superintendent, Intelligence Branch.
Deputy Inspector General of Police.District Police Offices.Subordinate ClerksSuperintendentSuperintendentDeputy Inspector Central of Police
27. It was argued on behalf of the appellants that the petitioner belongs to the category of Subordinate Clerks and he also belongs to the District Police Office and therefore according to the Schedule it is the Superintendent of Police who is the appointing authority and also the disciplinary authority. Reference was made to the letter dated December 4, 1959 addressed by the Assistant Secretary to the Home (Police) Department, to the Inspector General of Police, West Bengal by which sanction was given to the post in which the petitioner had been appointed. That letter has bean annexed to the affidavit dated April 18, 1962 of the Appellant No. 3. Sanction, was given in that letter with respect to posts of one Inspector, two Sub-Inspectors, two senior assistants, four assistants, fourteen junior assistants, two typists, one daphtary and Six constables for the West Bengal Intelligence Branch Headquarters as well for the posts of twenty-seven sub-Inspectors, thirty constables, twelve clerks, four typists-clerks and three typists In the District Intelligence Branches. The sanction for the Intelligence Branch Headquarters and the district intelligence branch is shown separately. Out of the three posts of typists sanctioned for the District Branches one was given to the petitioner !n this case. It may be mentioned incidentally that the same letter contains sanction for one upper division clerk, and lower division clerk and one typist for the office of the Inspector General of Police, West Bengal. It was argued that, sanction for the District Intelligence Branches was given separately because all those appointments were to be made by the Superintendent of Police after the posts had been allotted to the different Districts. A statement showing the allotment of the staff sanctioned was also sent along with the memorandum including acopy of the Government sanction to the superintendentof Police. That statement showed that one typist was tobe appointed by Sealdah Government Railway Police.
28. We find no difficulty in accepting the argument of the learned Standing Counsel that the Railway Policeconstituted a District Police administration. Nor do we find any difficulty in accepting the proposition that the Superintendent was the controlling authority of the District Intelligence Branch though this was subject to the inspection of the Deputy Inspector-General of Police. But we find it impossible to accept his proposition that the petitioner belonged to the cadre of Subordinate clerks in the District Police Office. The Bengal Subordinate Services Rules show typists as separate categories from clerks, No reason could be given by the learned Standing Counsel as to why in the case of District Police Offices 'typists' are to be taken as falling within 'the category of sub-ordinate clerks'. Banerjee, J. in his judgment mentions that both parties admitted before him that the petitioner came under the Schedule and did not hold an appointment not coming under the Schedule. Therefore, according to Sanarjee, J., Rule 5 in any event could not be invoked by the learned Standing Counsel. Even if that Rule could be invoked, Banerjee, J., refused to accept the contention that a 'typist' comes under the genus of 'subordinate clerks'. In agreement with Banerjee, J. we also hold that la 'typist' cannot be considered to be a 'subordinate clerk.'
29. Banerjee, J. has further found that Regulation 768 (b) does not apply to the petitioner. Banerjee, J. has pointed out that if 'typists' are not 'subordinate clerks' there is no room for applying Regulation 768 (b). Banerjee, J. further points out that 'subordinate clerks' appointed under Regulation 768 (b) are to be on probation for twoyears. The petitioner, on the other hand, was appointed on probation for one year only. Therefore, he could not have been appointed under Regulation 768 (b). In agreement with Banerjee, J. we also hold that the appointment to clerical staff in the Intelligence Branch Office and district Intelligence Offices was done under Rule 12 of the intelligence Branch Manual of Instructions which runs asfollows:
'Appointments in the Posts of typists in the Intelligence Branch and District Intelligence Offices shall bemade by the special Superintendent of Police (I), Intelligence Branch'. This instruction clearly shows that the petitioner as atypist was to have been appointed by the Special Superintendent of Police, Intelligence Branch.
30. The learned Standing Counsel contended thatRule 12 of the Intelligence Branch Manual of Instructions was nothing more than an administrative instruction and it was opposed to Rule 5 of the Bengal Subordinate Services Rules and Regulation. 768 (b) of the Police Regulations. We agree with Banerjee, J. that there is no conflict between either Rule 5 or Regulation 768 (b) and Rule 12 of the Intelligence Branch Manual. In our opinion, the petitioner comes within the scope of the Schedule entries under the heading 'Criminal Investigation Department and Intelligence Branch'. Therefore, his appointing authority was clearly the Special Superintendent, Intelligence Branch, i.e. to say, appellant No. 2.
31. I cannot part with this subject without making a reference to the letter of the Assistant Inspector General of Police dated 7th October, 1961 in which it has been categorically stated that the Special' Superintendent of Police, Intelligence Branch, West Bengal, is the appointing authority. That letter also states that the District Superintendent of Police has no power to initiate proceedings against a D. I. P. assistant under him. Scant attention seems to have been given to that letter. That letter, in our opinion, shows the basis on which the organisation has been running for years in the past. That letter is to be treated as a ruling or a decision by the Inspector General of Police, that is, by the head of the; Police Department. I fail to see how the appellant No. 3 can contest this position. The learned Standing Counsel argued that what mattered was the law of the thing and not what has been the practice in the department however ancient that practice may be. This is not altogether correct. Law relating to an Organisation or distribution of powers in an administrative machinery does not come from the blues. It evolves in course of the building up of the organisation, and is as much a reflex of the practice as the practice is a reflex of the law. If the law is categorically and unequivocally contrary to practice, one can possibly argue that the framers of the law wanted to abandon the practice and introduce an innovation. In that circumstance perhaps the law ought to prevail over the practice. But where there is ambiguity in the interpretation of the rules and the law relating to such subjects, one must refer to the practice which produces the laws. Nobody can deny that the entire administrative set-up of the police organisation developed according to actual needs of Government. It is impossible to believe that the rules came first and the organisation later. Therefore, the rules must have been framed subsequently to put on record the principles and policies which have governed the administration, of the machinery. In this particular case we do not think that there is much ambiguity. But even if there had been any ambiguity we would have no hesitation in resolving that ambiguity by reference to practice and there cannot be the slightest doubt that in actual practice all assistants and typists in the District Intelligence Branch are usually appointed by the Special Superintendent of Police, Intelligence Branch, Criminal Investigation Department. That fact explains all the various statements made by the appellant No. 3 in his first affidavit. That fact also explains the Intelligence Branch Manual of Instructions and also the letter of the Assistant Inspector General of Police, to which we have just made reference.
32. In this view of the matter we have not the slightest doubt that the appellant No. 3 was not and could not have been the appointing authority of the petitioner. We have not been called upon to answer any other question in this appeal. The appellants deliberately confined the controversy to only one question, viz., who is the appointing authority of the petitioner. In view of the fact that our finding on this point is against the appellants, we order that the appeal be and is hereby dismissed with costs.
Bachawat, J.
33. I agree.