Back
1955 Supreme(P&H) 39
PUNJAB & HARYANA HIGH COURT
Bhandari and Khosla JJ.
S.Akhtyar Singh
Versus
Inspector General Of Police, Punjab
Civil Writ No. 33 of 1955,
Decided On : SEPTEMBER 5, 1955
A writ of certiorari does not lie to challenge an order passed before the Constitution came into force.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 226 - WRIT OF CERTIORARI - ORDER PASSED BEFORE CONSTITUTION - NO WRIT LIES - DELAY IN MOVING COURT - WRIT REFUSED.
Fact of the Case:
Petitioner, a police officer, challenged an order reducing his rank passed before the Constitution came into force. He argued that he was pursuing departmental remedies and sent a representation after the dismissal of his appeal, which became final after the Constitution came into force.
Finding of the Court:
The court held that the order challenged was passed before the Constitution came into force and therefore no application under Article 226 of the Constitution lies to challenge the order. The court also held that the petitioner's delay in moving the court under Article 226 of the Constitution was inordinate and that the court would not grant any relief in the extraordinary discretion conferred by Article 226 of the Constitution when an aggrieved party comes after such long delay.
Issues: 1. Whether a writ of certiorari lies to challenge an order passed before the Constitution came into force? 2. Whether the petitioner's delay in moving the court under Article 226 of the Constitution was inordinate?
Ratio Decidendi: 1. The Constitution is not retroactive and is not applicable to a case where the cause of action arose before the coming into force of the Constitution. 2. A writ of certiorari does not lie to challenge an order passed before the Constitution came into force. 3. The court will not grant any relief in the extraordinary discretion conferred by Article 226 of the Constitution when an aggrieved party comes after such long delay.
Final Decision: The petition was dismissed with no orders as to costs.
Khosla, J.
1. This is a petition under Article 226 of the Constitution by an officer of the Police who is aggrieved by an order reducing him in rank.
2. Objection was taken by the learned Advocate-General that this petition could not be entertained on the short ground that the order challenged was passed before the coming into force of the Constitution. The order which the petitioner seeks to challenge was admittedly passed in July, 1949. Indeed, there are two orders which affect the petitioners rank. The first of these is dated 16-4-1948 and the second was passed in July, 1949.
3. The facts briefly are that the petitioner was recruited in the Police Force in April 1837 as an Assistant Sub-Inspector of Police. He was confirmed in this post in 1940 and in 1941 he was promoted to the rank of officiating Sub-Inspector. He was confirmed as Sub-Inspector in 1941 and two years later in 1946 he was promoted to the rank of Selection Grade Sub-Inspector. This was his substantive rank. In 1947 he was promoted as Officiating inspector and In the same year five criminal cases were instituted against him and an order of suspension was passed by the Department. While these cases were pending an order was passed on 16-4-1948 reverting him to the post of Selection Grade Sub-Inspector. The criminal cases against the petitioner failed and he was acquitted in 1949. After this order he was appointed as Sub-Inspector of Police in July 1949. This was the last order passed against the petitioner which affected him adversely and this is the order which he now seeks to challenge. This order was made before 26-1-1950 i. e., before the Constitution came into force and therefore no application under Article 226 of the Constitution lies to challenge the order.
4. The petitioners case is that he was pursu ing the remedy of a departmental appeal and after the dismissal of the appeal he sent up a represen tation or a memorial, and since his failure to get redress from the Department became final after 26-1-1950 he is competent to maintain the present petition.
5. Now, when a person files a petition under Article 226 of the Constitution he seeks to challenge the original order which affects him and it is this order which furnishes him with a cause for moving this Court. The order on appeal is not the order which he seeks to challenge. The rule which applies to civil appeals does not apply to applications for writs and in an application for writ ig clearly understood that it is the original order which is being challenged because it is that order which affects the petitioner adversely and it is that order which is either without Jurisdiction or manifestly unjust. A Division Bench of this Court held in --Sita Ram V/s. Union of India, AIR 1955 Punj 57 (A), that the Constitution is not retroactive and is not applicable to a- case where the cause of action arose before the coming into force of the Constitution. The Court was considering the case of a Railway servant who was removed from service without complying with the provisions of Article 311 of the Constitution. The Court held that since the order of removal was passed before the Constitution came into force non-compliance with the provisions of Article 311 of the Constitution did not furnish a cause of action to the Railway servant.
In -- Sohan Lal V/s. Sm. Gur Devi, AIR 1951 Punj 310 (B) Kapur J. held that a petition under Article 220 of the Constitution questioning the validity of an order passed before 26-1-1950 did not lie to the High Court. A reference may also be made to -- Mahabir Parshad V/s. Commr. of Income-tax, AIR 1953 Punj 16 (C), which is a case dealing with the Income-Tax Act.
6. Naresh Chandra V/s. Union of India. AIR 1952 Cal 757 (D), is a case almost on all fours with the present one. The petitioner in that case, Naresh Chandra Sanyal, was employed in the Railway Department. He was reverted to an inferior rank by an order passed on 1-9-1949. He preferred an appeal and while the appe
