RULE 1135 OF THE JAIL MANUAL IS INTRA VIRES THE PRISONS ACT, AS IT WAS MADE UNDER SECTION 59 (28) OF THE ACT, WHICH GIVES THE STATE GOVERNMENT POWER TO MAKE RULES GENERALLY FOR CARRYING INTO EFFECT THE PURPOSES OF THE ACT.

The petitioner was employed as a permanent Warden in the Service of the State. On 10th June, 1969 42 inmates of Sampurnand Shivir, which is an open Jail, were given in his charge in order to take work from them. One of the inmates, namely, Sri Barati, escaped quitely allegedly, due to the carelessness and negligence of the petitioner. The petitioner was charge-sheeted. There were four charges against him. He denied the charges. Upon enquiry, which followed, only two of the charges were found proved against him. On consideration of the matter, the Adhikshak, Sampurnand Shivir (Superintendent of Jail) opposite party No. 2, by his order dated 29-4-1970 reinstated the petitioner with minor punishment of withholding his annual increment for two years. In the opinion held by him, that the sentence imposed upon the petitioner was not adequate, Karagar Mahanirichhak (Inspector General of Prisons, U. P. , Lucknow), opposite party No. 3. acting under Rule 1135 of the Jail Manual, served a notice dated 12-10- 1970 on the petitioner to show cause why the order of the Superintendent of Jail be not superseded and he be dismissed from service. The petitioner submitted his explanation. Thereupon, the Inspector General of Prisons passed an order on 21-4-1974 removing the petitioner from service. After making an unsuccessful appeal to the State Government the petitioner filed this writ petition in which he claimed that the aforesaid orders were unjust, illegal and without jurisdiction and prayed that the same be quashed.

2. At the hearing before us, the only point urged in support of the petition by the learned counsel for the petitioner was that the order of the Inspector General of Prisons is invalid and without jurisdiction. Because said he, Rule 1135 is ultra vires the Prisons Act, under which it was framed. The learned counsel for the opposite parties strongly refuted the suggestion and argued that the source of authority for the rule lay in section 59 (10) of the said Act. Section 59 (10) authorises the State Government to make rules consistent with the Act:-

"for the government of Prisons and for the appointment of all Officers, appointed under the Act. " 3. The contention of the learned counsel for the petitioner was that the appointment signifies posting to an office and nothing more, and as such, Rule 1135, which is actually relatable to the conditions of service, falls outside the rulemaking power of the Government under this clause. In reply it was contended by the learned counsel for the opposite parties that the power to appoint includes the power of dismissal and, so, the Government was amply empowered under this clause to make the rule in question which is relatable to the power of dismissal.

4. Rule 1135 reads thus:-

"power of revision. The Governor and the Inspector General reserve to themselves the power of calling for records of any case and revising any order whether appeal against such order has been submitted or and whether the period of limitation has expired or not but not ordinarily after six months of such order:

Provided that where it is proposed to enhance penalty imposed by any such order, the Government servant concerned shall be given opportunity showing cause against the proposed enhancement. "

5. This rule appears in Chapter XII of the Jail Manual in juxtaposition to the rules providing for disciplinary matters relating to the Jail Officers and provides for the power of the State Government and the Inspector General of Prisons to revise the orders of the subordinate authorities in those matters, Clearly, it regulates conditions of service of Jail Officers in matters of discipline. There can be hardly any doubt that such matters do not fall within the purview of clause 10 of Section 59. The power of the State Government to make rules under that clause is ancillary to Section 6 of the Prisons Act which says:-

"officers of Prisons. For every prison there shall be a Superintendent, Medical Officer (who may als