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High Court Of Madhya Pradesh
G. P. Singh and M. L. Malik, JJ.
MATHURA PRASAD YADAVA
Versus
INSPECTOR GENERAL RLY PROTECTION FORCE RAILWAY BOARD NEW DELHI
Decided On : Dec 04,1973
Section 21 of the Act empowers the Central Government to make rules. The Act contains no provision authorising the Central Government to sub-delegate its power of making rules. There is also nothing in the Act which may lead one to conclude that the authority to sub-delegate has been conferred by necessary implication.
The Central Government has no authority to sub-delegate its power of making rules under section 21 of the Act. [Para 5
(2) Railway Protection Force Rules, 1959 - R.32-Rule-making power., not transferred to Inspector General-only administrative functions given-Rule not ultravires-Railway Protection Force Act, 1957 - Ss. 8 & 21.
When rule 32 authorises the Inspector-General to frame and issue regulations with the approval of the Central Government for the proper administration of the force, it confers no new power on the Inspector-General but it merely makes express what is implicit in section 8 of the Act. The rule correctly understood, does not sub-delegate any power of the Central Government of making rules as to the conditions of service: it merely recognises that power of administration of the Force subject to control of the Central Government which is vested by section 8 of the Act in the Inspector-General. [Para 6
The reason of the rule against sub-delegation is that when Parliament entrusts a function to a confidence being reposed in A, he alone must discharge that function. This reaon is wanting in a case where the delegate preserving substantial control & takes merely the assistance of same other person for discharging the function entrusted to him; the confidence reposed in the delegate by Parliament is then not betrayed and there is no real sub-delegation. AIR 1968 SC 850 relied on. (Para 7
(3) Railway Protection Force Act, 1967 - S. 21 (3)-Regulation made under rules not laid before the parliament-does not become inoperative Railway Protection Force Regulation, 1956-Regulation 14.
The effect of a laying clause of this variety is that the rules continue subject to any modification that Parliament may choose to make when they are laid; but the rules remain operative until they are so modified. Laying clauses requiring a negative procedure are, therefore, construed as directory. AIR 1966 SC 385 relied on. [Para 9
(4) Railway Protection Force Regulations, 1966 - Reg. 14 - Is not ultravires the power of Inspector General-Railway Protection Force Act, 1957 -S.15, Read in the background of section 15 of the Act, Regulation 14 does not create any new power of transfer; it only regulates transfers for the proper administration of the Force by providing that a member will be employed normally on the Railway to which he is first posted and he will have no claim, as of right, for transfer to another Railway, but in the interest of administration it shall be open to the Inspector General to transfer a member from one Railway to another. [Para 10
(5) Interpretation of Statute-rule-making power-subject to laying down the rules on the table of the Parliament-effect.
A correct construction of any particular laying clause depends upon its own terms. If a laying clause defers the coming into force of the rules until they are laid, the rules do not come into force before laying and the requirement of laying is obligatory to make the rules operative So the requirement of laying in a laying clause which requires an affirmative procedure will be held to be mandatory for making the rules operative, because, in such cases the rules do not come into force until they are approved, whether with or without modifications, by Parliament. But in case of a laying clause which requires a negative procedure, the coming into force of the rules is not deferred and the rules come into force immediately they are made.
( 1. ) THE petitioner who is a Circle Inspector in the Railway Protection Force by this petition under Article 226 of the Constitution challenges an order of transfer passed by the Inspector General on 3rd June 1971 by which the petitioner was transferred from Central Railway to Western Railway.
( 2. ) THE impugned order of transfer is expressed to be made under Regulation 14 of the Railway Protection Force Regulations, 1966 which reads as follows:
"14. General.- Although the Railway Protection Force has been organised on all india basis, the members of the Force shall be ordinarily employed throughout service on the Railway or Railway Establishment to which they are posted on first appointment and shall have no claims, as of right, for transfer to another Railway or Railway Establishment. In the interest of administration, it shall, however, be open to the Inspector-General to transfer the members of the Force from one railway to another. "
The Regulations were framed and issued by the Inspector General with the approval of the Central Government in exercise of the power conferred on that behalf by Rule 32 of the Railway Protection Force Rules, 1959. Rule 32 is as under.
"32. Powers of Inspector-General to frame regulations,-The Inspector-General may, from time to time, for the proper administration of the Force frame and issue regulations with the approval of the Central Government and superior officers and members of the force shall, as a condition of their service, be governed by such regulations in the discharge of their duties. Such regulations as are in force on the date of commencement of the Act shall continue to remain in force unless repealed or modified "
The Rules were made by the Central Government under section 21 of the railway Protection Force Act, 1957. The relevant clauses of this section read as under:
"21. Power to make Rules:- (1) The Central Government may, by notification in the Official Gazette, make Rules, for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing powers, such Rules may provide for:- (a) regulating the classes and grades and the pay and remuneration of superior officers and members of the Force and their conditions of service in the Force; xxx xxx xxx xxx (3) All Rules made under this section shall be laid for not less than thirty days before both Houses of Parliament as soon as possible after they are made and shall be subject to such modifications as Parliament may make during the session in which they are so laid or the session immediately following. "
( 3. ) THE learned counsel for the petitioner has raised before us the following contentions: (1) Rule 32 is invalid as the Central Government instead of itself making rules regulating the conditions of service as required by section 21 (2) (a)has sub-delegated that power to the Inspector-General by authorising him to make regulations; (2) assuming that Rule 32 is valid, Regulation 14 is still invalid as it was not laid before Parliament as required by section 21 (3); (3) the Regulation is invalid also on the ground that it is in excess of the power conferred on the Inspector General by Rule 32 ; and (4) that the transfer of the petitioner from the Central Railway, where he has been serving upto this time, to the Western Railway will prejudicially affect his seniority and chances of promotion.
( 4. ) ALTHOUGH there is no direct English authority on the point, the english writers have consistently expressed the view that an authority, to whom power to make delegated legislation is conferred, cannot sub-delegate that power unless it is authorised to do so by the enabling Act. [see Allen, Law and Orders, 3rd edition, p. 181 ; Smith, Judicial Review of Administrative action, 2nd edition, pp. 282, 283 ; Halsburys Laws of England, 4th edition, vol. 1, p. 34. ]. The rule against sub-delegation of legislative power has been judicially recognised in Commonwealth countries; [geraghty
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