MADANBHAI RAMJIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The short question which arises in this petition is whether an order made by a District Magistrate appointing a person as Police-patel with effect from a future date can be validly revoked by him before the arrival of the future date. On 28th September 1966 an order was passed by the second respondent who is the District Magistrate Surat appointing the petitioner as Police-patel of village Mubarakpur Taluka Nizar District Surat for a period of five years from the date he takes the charge. However before the charge as Police-patel was taken by the petitioner the second respondent on a complaint received from one Devidas Kanjibhai found that the petitioner had turned hostile in a prohibition case and he therefore by an order dated 16th November 1966 cancelled the earlier order dated 28th September 1966. The petitioner thereupon preferred the present petition challenging the order of cancellation passed by the second respondent.

(2.) The main contention of the petitioner was that as soon as the petitioner was appointed Police-patel by the order dated 28th September 1966 a right to the post of Police-patel was created in the petitioner and the District Magistrate was thereafter not entitled to cancel the appointment so as to take away that right without giving an opportunity to the petitioner to show cause why the appointment should not be cancelled. The petitioner also urged that in any event the District Magistrate had no power to cancel an appointment already made by him and such power belonged if at all only to the State Government as the master. Respondents Nos. 1 to 3 rejoined by saying that since the appointment made under the order dated 28th September 1966 was to be effective only from the date when the petitioner assumed charge of the office of Police-patel there was no appointment of the petitioner as Police-patel in force at the date when the second respondent passed the order of cancellation and therefore there was no question of cancellation of an appointment already made and the argument of the petitioner based on the premise that what the second respondent had done was to cancel the appointment of the petitioner as Police-patel was not well-founded. Respondents Nos. 1 to 3 pointed out that though the order of cancellation was so worded it was not really an order cancelling an appointment already made but it was merely an order revoking the earlier order before the earlier order became effective by the petitioner assuming charge of the office of Police-patel and therefore it was not beyond the power of the District Magistrate to make and there was no illegality in making it. These were the rival contentions of the parties and they raised an interesting question as to the true scope and ambit of the power of the District Magistrate under the Bombay Village Police Act 1867

(3.) Turning to the Bombay Village Police Act 1867 there are only two provisions in that Act which are material for the determination of the present controversy and they are sub-secs. (1) and (4) of sec. 5. Sec. 5 sub-sec. (1) provides inter alia that the village police in each village shall be under the charge of such person as the State Government shall appoint in writing to be Police-patel and sub-sec (4) of that section says that the powers of the State Government under that section may also be exercised by the Magistrate of a district. It was in exercise of the power conferred under sec. 5 sub-sec. (4) that the District Magistrate made the order dated 28th September 1966. Now it is clear on a plain reading of sec. 5 sub-sec. (1) that the appointment of a Police-patel contemplated by that sub-section is an appointment which has the effect of making the person appointed a Police-patel. If an order is passed appointing a person to be a Police-patel with effect from a future date there is no appointment of such person as Police-patel until the future date arrives. It is only when the future date arrives that such person can be said to be appointed as Police-patel. Sec. 5 sub-sec. (1) says that the village-police in each village shall be under the charge of such person as the State Government shall appoint in writing to be Police patel and therefore as soon as a person is appointed Police-patel by the State Government the village-police in the village is to be under the charge of such person. The appointment which is referred to in sec. 5 sub-sec. (1) is therefore an appointment which is to be effective immediately and not an appointment which is to be effective from a future date. It is only when the person appointed becomes a Police-patel that he is said to be appointed as Police-patel within the meaning of sec. 5 sub- sec. (1). If the view were taken that a person is appointed Police-patel as soon as an order appointing him as a Police-patel with effect from a future date is made the result on a plain construction of sec. 5 sub- sec. (1) would be that the village-police in the village would straightway go under the charge of such person even before the future date arrives and even though there might be some other Police-patel until the arrival of the future date. Where therefore an order is passed by the State Government appointing a person as Police-patel not with immediate effect but with effect from a future date there is no appointment of such person as Police-patel until the future date arrives and no right is created in such person by virtue of the order until the appointment becomes effective on the arrival of the future date. It is undoubtedly true that when on the arrival of the future date the appointment comes into force and the person appointed becomes a Police-patel he acquires a right to hold the post of Police-patel and his right to hold the post cannot be terminated for the duration of the period of appointment except by complying with the provisions of Article 311 but so long as the future date does not arrive and the appointment does not become effective he has no right to the post and the State Government can revoke the order of appointment. When in such a case the State Government revokes the order of appointment the State Government does not cancel an appointment already made but the State Government merely revokes the order before it becomes effective and an appointment is made within the meaning of the Act. The same position also obtains when the order of revocation is passed not by the State Government but by the District Magistrate for the power which the District Magistrate can exercise under sec. 5 sub-sec. (4) is the same power which is exercisable by the State Government under sec. 5 sub-sec. (1). Here in the present case the order dated 28th September 1966 did not appoint the petitioner as Police-patel with immediate effect but appointed him with effect from a future date namely when he assumed charge of the office of Police-patel. But before the petitioner assumed charge of the office of Police-patel the order of cancellation was passed by the second respondent. The service of the petitioner as Police-patel had therefore not commenced and the petitioner did not hold the post of Police-patel at the date when the order of cancellation was passed by the second respondent and the order of cancellation accordingly did not amount to removal or dismissal of the petitioner from service so as to require compliance with the provisions of Article 311. There was no appointment of the petitioner as Police- patel in force at the date of the order of cancellation and there was accordingly no impediment in the way of the second respondent in passing the order of cancellation revoking the order dated 28th September 1966. There is therefore no ground for challenging the order of cancellation passed by the second respondent and the order of cancellation must be sustained.