V.KAMESWAR RAO, J.

1. Rule 11 of the Delhi Police (Punishment & Appeal) Rules, 1980 reads as under:-

“Rule 11.Punishment on judicial conviction.-

(1) When a report is received from an official source, e.g. a court or the prosecution agency, that a subordinate rank has been convicted in a criminal court of an offence, involving moral turpitude or on charge of disorderly conduct in a state of drunkenness or in any criminal case, the disciplinary authority shall consider the nature and gravity of the offence and if in its opinion that the offence is such as would render further retention of the convicted police officer in service, prima facie undesirable, it may forthwith make an order dismissing or removing him from service without calling upon him to show cause against the proposed action provided that no such order shall be passed till such time the result of the first appeal that may have been filed by such police officer is known.

(2) If such police officer is acquitted on second appeal or revision, he shall be reinstated in service from the date of dismissal or removal and may be proceeded against departmentally.

(3) In cases where the dismissal or removal from service of the convicted police officer is not considered necessary, the disciplinary authority may examine the judgment and take such departmental action as it may deem proper.

(4) When a police officer is convicted judicially and consequently dismissed or removed from service, and it is desired to ensure that the officer dismissed or removed shall not be re-employed elsewhere, a full descriptive roll with particulars of punishments, shall be sent for publication in the Delhi Police

Gazette.”

2. No argument being advanced whether the word shall occurring in the phrase provided that no such order shall be passed till such time the result of the first appeal that may have been filed by such police officer is known should be read as mandatory or directory i.e. may, and on the premise that the word shall was to be read as mandatory, in the decision reported as 155 (2008) DLT 115 Commissioner of Police vs. Brij Pal Singh, a Division Bench of this Court held that pending decision of the appeal against an order of conviction a police personnel governed by the Delhi Police (Punishment & Appeal) Rules, 1980 could not be proceeded against in exercise of the power conferred by Rule 11 of the Delhi Police (Punishment & Appeal) Rules, 1980.

3. Vide order dated July 15, 2013 passed in WP(C) 1956/2013, noting that in Brij Pal’s case the majority view of the Constitution Bench decision reported as AIR 1985 SC 1416 Union of India vs. Tulsi Ram Patel was not noted, a reference was made to a Full Bench. The order of reference dated July 15, 2013 reads as under:-

“1. Interpreting Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980, in the decision reported as 155 (2008) DLT 115 Commissioner of Police vs. Brij Pal Singh a Division Bench of this Court held that power under said Rule can be exercised by dispensing with an inquiry but before a convicted Delhi Police personnel files an appeal challenging his conviction.

2. Attention of the Division Bench was not drawn to the Constitution Bench decision of the Supreme Court reported as AIR 1985, SC 1416 Union of India vs. Tulsiram Patel. Observations of the majority view in Tulsiram Patel’s case and especially in paragraph 44, 50, 51 and 54 thereof would reveal that the majority view took into account Article 309 of the Constitution of India as also Articles 310 and 311.

3. The majority view observed that the source of legislative power to legislate with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State under Article 309 of the Constitution of India is subject to the provisions of the Constitution.

4. The question of law which would arise would be:

Whether Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules,