CHAMAN SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THESE writ petitions are directed against the award of adverse entry to the petitioners. The petitioner Rajendra Bahadur Singh has also challenged the suspension order passed against him. Petitioner Chaman Singh was holding the post of Platoon Commander in the Provincial Armed Constabulary, while the petitioner Rajendra Bahadur Singh was holding the post of Constable posted at Police Line Barabanki. The learned counsel for the petitioners was asked as to why the petitioners have not availed of the alternative remedy available before the U. P. Public Services Tribunal constituted under the U. P. Public Services (Tribunals) Act. The learned counsel submitted that the petitioners have challenged the vires of paragraph 478 (be) and paragraph 478-A of the Police Regulations and this challenge cannot be entertained by the Tribunal and therefore approach of the petitioners to the: Tribunal will be futile. The learned counsel stated that on the question of vires this Court has entertained writ petition No. 4496 of 1987. It was pressed that since these petitioners are of similar nature, they may also be admitted and connected with the earlier petition. We accordingly summoned the record of Writ I Petition No. 4496 of 1987. A perusal of the record indicated that a number of questions have been raised in the said petition including the vires of paragraph 478 (bc) and paragraph 478-A. It is not possible to ascertain from the admission order whether the writ petition has been admitted on the question of vires or on any other question. Accordingly it is not possible to admit these petitions merely on the basis of the admission order passed in Writ Petition No. 4496 of 1987. We accordingly called upon the learned counsel for the petitioners to make submissions on the question of vires.

(2.) THE learned counsel, Kumari Amarjeet Kaur submits that the Regulations contained in Chapter XXXII of the Police Regulations have been framed under section 7 of the Police Act, 1861, for short Act, and are in the nature of subordinate legislation and such a legislation cannot go against the provisions of the Act. It is pointed out that paragraphs 478 (be) and 478-A fall under Chapter XXXII. For the legal propositions that the Rules framed in exercise of the power conferred by statute, cannot go against the provisions of the statute, she has invited our attention to the statement contained in Sri Jagdish Swamp's Legislation and Interpretation 19T4 Edition at page 560. Before we proceed further, we may reproduce relevant portions of section 7 and paragraph 478. Section 7 reads as follows :

(3.) SECTION 7 is not the provision conferring right upon the State Government to frame rules or Regulations. That provision is section 46 (2) of the Act which reads as under : 46. (1) ..... .......... (2) When the whole or any pant of this Act shall have been so extended, the State Government may, from time to time, by notification in the official Gazette, make rule consistent with this Act- (a) to regulate the procedure to be followed by Magistrates and police officers in the discharge of any duty imposed upon them by or under this Act; (b) to prescribe the time, manner and conditions within and under which claims for compensation under section 15-A are to be made, the particulars to be stated in such claims, the manner in which the same are to be verified, and the proceedings (including local enquiries if necessary) which are to be taken consequent thereon; and (c) generally, for giving effect to the provisions of this Act. (3) ... ...... ......