1 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4050 OF 2009 The Special Inspector General of Police Kolhapur Range, Kolhapur & ors. : Petitioners versus Shri Ambadas Hariba Yadav : Respondent. Mr. S R Nargolkar, AGP, for the Petitioner Mr. Prashant Bhavke a/w Mr. B A Bandiwadekar for the Respondent. CORAM : S B MHASE & R M SAVANT, JJ. DATE : 6th October 2009 P.C. 1. This Petition takes exception to the Order dated 20th November 2008 passed by the Maharashtra Administrative Tribunal by which order the learned Tribunal has allowed the Original Application 243 of 2008 filed by the Respondent herein whereby the impugned order passed by the Petitioner dismissing the Respondent from service under Article 311(2)(b) of the Constitution of India was set aside. 2. The question which arose before the learned Tribunal was as regards the competency of the Special Inspector General of Police, Kolhapur Range, Kolhapur to pass the impugned order. The Respondent 2 herein was working in the constabulary of the Petitioner and was promoted to the post of Sub Inspector on 30th April 2001. The said promotion order was issued from the office of the Director General of Police and was signed by the Deputy Inspector General of Police (Establishment) on behalf of the Director General of Police. It appears that whilst the Respondent was working as Police Sub Inspector, he is alleged to have committed a misconduct of not producing a victim who was a minor girl before the Child Welfare Committee and mis-behaving with the said girl on 15th March 2008. After recording a detailed statement of the Respondent, a decision was taken by the Petitioner to dismiss the Respondent by invoking Article 311(2)(b) of the Constitution of India. The said Article contemplates dismissal without enquiry if the circumstances so warrant to the satisfaction of the Disciplinary Authority. 3. The said dismissal order came to be challenged by the Respondent by filing the Original Application No.243 of 2008. The main challenge was as mentioned herein above was as regards the competency of the Special Inspector General of Police, Kolhapur Range, Kolhapur to pass the said dismissal order. 3 4. The learned tribunal, considering the Bombay Police Manual and especially Clauses 56 and 58 as also considering various provisions of Bombay Police Act which were sought to be relied upon by the Petitioners as also considering the fact that the Sub Inspectors cadre on the date when the said dismissal order came to be passed was a State Cadre and not a Regional Cadre, came to a conclusion that the provisions of Bombay Police Manual have not kept pace with the changes that have taken place in respect of the cadre viz that the said Sub Inspectors cadre has become a State Cadre, and therefore the reliance placed by the Petitioners on the said provisions was misplaced. The learned Tribunal therefore recorded a finding that the reliance placed on the provisions of the Act and Rule as contained in the Bombay Police Manual was contrary to the actual defacto position and hence the same was in violation of Article 311 (1) of the Constitution of India. 5. We have perused the impugned order passed by the learned Tribunal as also the reasons cited by it for allowing the original application. We do not find any infirmity or any illegality in the said order for us to interfere in our writ jurisdiction under Article 226 of the Constitution of India. 4 6. On behalf of the Petitioner reliance was sought to be placed on the judgment of the Apex Court in the matter of A K Sen and others v/s Union of India and ors. reported in (1985) 4 Supreme Court Cases 641. In the said case the question was about equivalence of the post of Assistant Inspector General vis-a-vis the post of Commandant. Such is not the case in the instant matter. In the instant matter the question is as regards the competency of the Special Inspector General of Police to pass an order in respect of a person belonging to a State Cadre. In the said case before the Apex Court, the President of India had issued a sanction order, sanctioning certain posts amongst which the post of Assistant General of Police was one which was ranked along with the post of Commandant. The Rule in question in the said case was also substituted by placing the post of Assistant Inspector of General along with the post of Commandant and in the said circumstances the Apex Court came to a conclusion that there was no infirmity in the order passed in that case. 7. However, in the instant case, since the Cadre of Sub Inspector is a State Cadre, there is no question of any equivalence. The Special Inspector General of Police Kolhapur Range, Kolhapur is admittedly lower in rank than the Director General of Police who is the appointing authority for the officers in the State Cadre. 5 A contention was sought to be advanced on behalf of the Petitioner relying upon the appointment letter of the Respondent that since the appointment letter was issued by the Deputy Inspector General of Police, there was no infraction of Article 311 (1) of the Constitution of India as the Special Inspector General of Police cannot be said to be lower in rank than the appointing authority. In our view, the said submission is fallacious. The test of determining who is the appointing authority cannot be the signatory of the appointment letter, as the appointment letter can also be issued on behalf of the appointing authority, as is the case in the instant matter. If the argument of the learned counsel for the Petitioner is to be accepted, it would lead to an anomalous position inasmuch as there would be different appointing authorities for persons in the same cadre. Such a situation cannot be countenanced in service jurisprudence. Since the Petitioner accepts the position that the cadre of Sub Inspector is a State Cadre, in our view, the appointing authority has to be the Director General of Police, and since the order of dismissal in the instant case has admittedly not been passed by the appointing authority but by an officer lower in rank then the appointing authority, the order of the Tribunal cannot be faulted with. 6 8. In that view of the matter no interference is called for. The above writ petition is accordingly dismissed. The ad interim order which is operating in this Petition would operate for a further period of six weeks from date. [R.M.SAVANT, J] [S.B.MHASE, J]