2002 Supreme(SC) 1183

2002(8) Supreme 531
SUPREME COURT OF INDIA
(From Orissa Administrative Tribunal)
Doraiswamy Raju & Shivaraj V. Patil, JJ.
Ajay Kumar Bhuyan & Ors. -Appellants
versus
State of Orissa & Ors. -Respondents
Civil Appeal Nos. 3978-3979 of 1998
With
Civil Appeal No. 3980 of 1998
Decided on 3-12-2002
Counsel for the Parties :
For the Appellants : Jaideep Gupta, Sr. Advocate, Jitendra Mohapatra Ramchandra Rath and T. Raja, Advocates.
For the Respondents : Raj Kumar Mehta, P.H. Parekh, D.P. Mohanty and Lalit Chauhan, Advocates.

IMPORTANT POINT
Administrative Tribunals should not ignore the settled judicial pronouncement of Apex Court. It amounts to judicial impropriety.

Headnote:Constitution of India-Articles 162, Proviso to Article 309-Orissa Police Manual, 1940-Orders for earlier decisions including one of Apex Court that they had no authority of law-Chairman of Tribunal felt not bound by decision of the Bench in Four O.A. s decided on 22.10.90 taking a contrary view-Whether correct? (Yes)-Result-Appeals dismissed-Law Judicial propriety invoked.

       Held : We have gone through the Police Manual. The entirety of the so-called rules contained in the Manual are called rules riot because that everyone of them had statutory backing or source of its origin in a statute but where rules designed for uniform application in the Police Department at the level of DGP/IG and below even at the district level. No serious effort seems to have been made to scan through the Police Manual which contains a preface note that the Orissa Police Manual, 1940 contains the rules made by the State Government and rules and orders framed by the IG of Police (Presently DGP/IG) with the approval of the State Government under the provisions of the Police Act, 1861 and are issued miner the Authority of the Government to be binding on all the police officers and that it is an authoritative guide to the officers of the Department, In some only of the rules printed in the book, on going through the body of the Manual we find that an asterisks mark is assigned with a foot note that they were rules made under Section 12 or 45 of the Police Act, 1861. Again in respect of some of the other provisions indication of the statutory provisions of the Criminal Procedure Code or other statutory provisions under which they have been made are specifically mentioned. At the top of some of the chapters, particularly chapter XX relating to appointments and engagement, a specific note is found printed (that rules marked with asterisks have been sanctioned under Section 7 of the Police Act, 1861. The conspicuous omission or absence of such specific indication either in the top of chapter XXVII or in respect of anyone of the so-called rules enumerated thereunder, as to their nature and character or showing them to have any statutory origin, it has to be presumed reasonably and necessarily to be not statutory. In State of Rajasthan vs. Ram Saran (AIR 1964 SC 1361) this Court had an occasion to consider this aspect and hold that only the rules or orders passed by the Government under Section 2 of die Police Act, 1861, alone can be held to constitute conditions of service. The rules envisaged to be made by the Inspector General subject to the approval of the State Government even under Section 12 of the Police Act was considered to be not such which could deal with or relatable to the service condition of the officers recruited to the police force. Even the. decisions relied upon by the Tribunal for its conclusions in State of Uttar Pradesh & Others vs. Babu Ram Upadliya (AIR [961 SC- 751); Jagannath Prasad Sharma vs. The State of UttarPradesh & Others [AIR 1961 SC 1245) would go to show that what was considered to be continued by virtue of Article 313 of the Constitution of India as existing law were only those statutory rules or regulations made in exercise of the powers conferred on the Government under the Police Act, 1861 which stood preserved under Section 243 of the Government of India Act, 1935 and, therefore, held to continue to be in force even after the Constitution, so far as they are consistent with the provisions of the Constitution. Laws in force for the purposes of Article 313 of the Constitution of India were considered to be only those which were framed in exercise of various statutory powers vested with the Government including the powers under Section 7 of the Police Act and not to confer such statutory character to each and everyone or the other of the so-called rules. As a matter of fact in Union of India & Others vs. Majji Jangammayya & Others (AIR 1977 SC 757), repelling a similar plea urged in respect of an administrative instruction of the Government conveyed through the Central Board of Revenue, it was observed that an administrative instruction or order is not a statutory rule, and that "Article 313 does not change the legal character of a document and "Article 313 refers to laws in force which mean statutory laws and administrative instruction or order is not a statutory rule". The rules that were under consideration in the decision in B.N.Nagarajan vs State of Mysore (AIR 1966 SC 1942), were held though not to be made under Article 309 but traceable to the powers of the Government under Article 162 of the Constitution of India, and therefore binding in the absence of rules under Article 309. The same cannot be said of the Police Manual of the year 1940. Consequently the baseless assumption of the Tribunal which rendered the decision on the view that the rules noticed by it had the status of "existing law without specifically pointing out under what provisions of law they were or could have been made is totally erroneous arid for that reason also donors the binding nature of the earlier decisions of the Tribunal, as well as of this Court and despite the judicial norms, proprieties arid decorum violated also, cannot be justified in law on merits as well. (Para 16)

       Held on Judicial propriety citing 1997(6) SCC 450 : So much said regarding Courts would apply with equal if not more force to Administrative Tribunals and it is beyond comprehension as to how an Administrative Tribunal could have hazarded a decision like the one rendered on 22.10.90, which both in law and for all purposes must be treated as "non est", and at any rate not binding upon the Bench of the Tribunal (Chairman) who decided the applications on 3.1.97 and rejected the Review Petition therein on 1.3.97. (Para 18)

       Held thereafter : The Chairman of the Tribunal though sitting singly, in our view has rightly exposed the serious infirmities not only m the reasoning of the bench of the Tribunal headed by the Vice-Chairman but also spelled out the correct position of law emanating from the ratio and principles laid down as well as the directions contained in the earlier decisions of the Tribunal as well as the judgment of this Court noticed above. The position of law with reference to the nature and character of the powers of the DGP/IG as well as the appointments made by him m his office and the status of such officers have been categorically declared to be that of ad hoc for all purposes, to those cases and it was not only futile but also impermissible for a Bench of the Administrative Tribunal which subsequently decided the four O.As to treat them as regular appointments and to assume further that there were no vacancies to be filled, up vis-a-vis the post held by such appointees, afresh under the new statutory rules. As long as the earlier decision of the Tribunal and that of this Court held the field which, in our view, has been rightly considered and understood by the Government also at the relevant point of time to deny a request to regularize those appointments of the 1981 and 1983 on a proper and correct understanding of the ratio of those decisions, there was no scope or justification in law for the other bench of the Tribunal headed by the Vice-Chairman or the Government subsequently to make a somersault in derogation of the firmly settled legal position. (Para 19)

       Held further : Yet another fallacy which vitiates the said judgment was the omission to give due effect to the rules which came into force in the year 1975 which had the inevitable consequence of replacing once and for all the earlier rules contained even m the Police Manual and that the exemption given in 1980 was only for the purposes of keeping the posts in the office of the DGP/IG out of the 1975 rules and bring them under the rules to be made separately for such personnel and the orders of the Government could not be considered to have the effect of restoring even the provisions contained in the Police Manual which had been rendered obsolete by coming into force of the statutory rules of 1975. (Para 20)

       Held further : In the light of the above, we see no merit or force whatsoever in the challenge made to the impugned orders of the Tribunal passed by the Chairman on 3.1.97 as well as on 1.3.97. Inasmuch as the Chairman in the orders under challenged has only declared what was the inevitable conclusions which necessarily flow from the earlier decisions and merely applied them to the case on hand as was obligatory for the Tribunal, no excepts-on whatsoever could be taken to the orders under challenge. The Tribunal rightly, in our view, now felt not bound by the decision rendered in the four O.As on 22.10.90 even without any reference to the claims that were pending even as on that date in O.A.206 of 1989. The appeals, therefore, fail and shall stand dismissed but with no order as to costs. (Para 21)