V.G. Oak, J.
1. The short point for consideration in this writ petition is whether the petitioner continues to be a member of the police service.
2. In August 1961 the petitioner was posted in district Nainital as an Assistant Public Prosecutor. On 22-1-1962 he submitted his resignation to the Deputy Inspector-General of Police, Bareilly. On 19-2-1962 he was suspended. In March 1962 he was directed to present himself in Police Lines for departmental proceedings. On 20-3-1962 the Deputy Inspector-General of Police passed an order to the effect that, the petitioner's resignation could not be accepted in view of the departmental proceedings pending against him. According to the petitioner, he has ceased to be a police officer in view of the resignation submitted by him. It is contended on his behalf that, disciplinary proceedings under the Police Act are not competent, as he is no longer a police officer.
3. Mr. S.C. Khare appearing for the petitioner relied upon Section 9 of the Police Act. Section 9 of the Police Act states:
"No police-officer shall be at liberty............... without the leave of the District Superintendent, to resign his office unless he shall have given to his superior officer notice in writing, for a period of not less than two months, of his intention to resign."
According to Mr. Khare, Section 9 of the Police Act confers on all police officers the right to resign.
4. On the other hand, Mr. H.N. Seth appearing for the respondents contended that, no police officer has an absolute right to resign. No such resignation becomes effective until it is accepted by the competent authority. In support of this contention, Mr. Seth relied upon Ganesh v. G.I.P. Rly., 2 Bom LR 790. In that case Jenkins, C. J. observed on p. 792 thus:
"Mere resignation obviously is not enough unless it be assented to, or unless it comply with those terms which the law implies or the prior agreement of the parties may permit."
Those observations of Jenkins, C.J. do not support the wide proposition that, a Government servant's resignation is ineffective until it is accepted by the competent authority. On that view, it would be possible for higher authorities to refuse to accept resignation of a subordinate officer for an indefinite period. According to the observations of Jenkins, C.J., if a resignation complies with the terms which the law implies, the resignation can become effective.
5. In 1942 the Governor-General of India issued. Ordinance No. XI of 1942 placing a restriction on the right of police officers to resign. The preamble of the Ordinance ran thus:
"An Ordinance temporarily to suspend the right at present enjoyed by certain members of police forces in British India to resign office on giving notice of their intention to resign.
Whereas an emergency has arisen which makes it necessary temporarily to suspend the right at present enjoyed by certain members of police forces in British India to resign office on giving notice of their intention to resign.
The preamble of the Ordinance indicates that the Governor-General recognized the right of police officers in India to resign on giving notice of their intention to resign. So, if Section 9 of the Police Act were the only statutory provision on the subject, a police officer could resign on giving two months' notice.
6. But Mr. H.N. Seth relies upon Paragraph 505 of Police Regulations. Paragraph 505, Police Regulations runs thus:
"A police officer................. can resign his- office on giving in writing two months notice of his intention to resign. ................ Provided that ................ Provided further that the resignation of a police officer whose conduct is under enquiry or who is being proceeded against departmental under Section 7 of the Police Act, 1861 or tried in a Court of, law far any offence may, in the discretion of such authority, not be accepted until such time the final orders are passed as a result of such enquiry, proceedings or trial as the case may be."
7. Two counter-affidavits have been filed on behalf of the respondents. According to paragraph 26 of the first counter-affidavit, when the petitioner submitted his resignation on 22-1-1962, a preliminary enquiry into the allegations of improper conduct, for which proceedings under Section 7 could be taken, was already going on against the petitioner. As a matter of fact, the Circle Officer Submitted his report of his preliminary enquiry on 8-2-62. Since a departmental proceeding was pending against the petitioner in the beginning of 1962, the case attracts the second proviso to paragraph 505 of the Police Regulations.
8. Mr. S.C. Khare contended that the second pro-viso to paragraph 505, Police Regulations is ultra vires. He contended that, in the first place, the second proviso to paragraph 505, Police Regulations is in conflict with Section 9 of the Police Act. Secondly, the State Government had no power to insert any such provision in Police Regulations.
9. I am unable to accept Mr. Khare's first objection as regards validity of the second proviso to paragraph 505, Police Regulations. It is true that Section 9 of Police Act also deals with the subject of resignation of police officers. But I do not find any conflict between the provision of Section 9, Police Act and paragraph 505, Police Regulations. The marginal note to Section 9, police Act is:
"Police Officers not to resign without leave or two months notice."
The marginal note gives a true indication of the nature of the provision of Section 9, Police Act. Under common law, an employee has a right to resign on giving reasonable notice to the employer. In the absence of any statutory provision on the point, Government servants are also entitled to the benefit of that common law rule. Section 9, Police Act is a provision placing a restriction on the right of police officers to resign. Section 9. Police Act does not create an independent right of resignation. On the contrary, Section 9, Police Act contains a restriction on the common law right of Police Officers to resign from service. It is not, therefore, correct to say that, Section 9 of the Police Act gave the petitioner a right to resign on giving two months' notice without further restrictions, It was open to the competent authorities to place further restrictions on the right of police officers to resign from service.
There is force in Mr. Khare's second, objection as regards the validity of paragraph 505, Police Regulations. The present paragraph 505 was inserted in Police Regulations by way of an amendment. That amendment was made under a Government notification dated 26-12-1959 published in the U.P. Police Gazette dated 6-1-60. It was mentioned in that notification that, the amendment was being made by the Governor, U, P. under Sub-section (3) of Section 46 of the Police Act.
10. Sub-section (2) of Section 46, Police Act empowers State Governments to make rules. Section 46(2), Police Act states:
"................. The State Government may ............... make rules consistent with this Act :--
(c) generally, for giving effect to the provisions of this Act"
Mr. H.N. Seth contended that, paragraph 505 of Police Regulations was a rule made by the State Government under Clause (c) of Sub-section (2) of Section 46, Police Act,
11. It will be noticed that Clause (c) of Section 46(2), Police Act gives power to the State Government to make a rule generally for giving effect to the provisions of the Act. On going through the whole of the Police Act, I do not find any provision in the Act, which is advanced by the impugned provision in the police Regulations. Section 9 is the only provision in the Police Act dealing with the subject of resignation. That provision In Section 9 is quite simple. The provision is to the effect that, a police officer must not resign without giving two months' notice. There will be no difficulty in the working of that provision. The second proviso to paragraph 505, Police Regulations in no way facilitates the working of Section 9 of the Police Act. The impugned provision does not appear to be for the purpose of giving effect to any provision of the Police Act. The second proviso is not, therefore, covered by Clause (c) of Sub-section (2) of Section 46 of the Police Act.
12. In the alternative, Mr. K.N. Seth suggested that the impugned provision may be sustained under Article 309 of the Constitution. Article 309 of the Constitution runs thus:
"Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed to public services and posts in connection with the affair of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and "posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in Connection with the affairs of the State, to make, rules regulating the recruitment, and the conditions of service of person appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act."
13. Mr. S.C. Khare contended that, there are several difficulties in sustaining the second proviso under Article 309 of the Constitution. He pointed out that different authorities have been specified under Section 46 of the Police Act and the proviso to Article 309. Under Section 46 of the Police Act, a State Government may make rules. Under Article 309, a Governor may make a rule. That difference would have been of some importance, had the impugned rule been framed by the State Government as such. But according to the Government notification dated 26-12-1959, the amendment of paragraph 505 Police Regulations was made by the Governor of Uttar Pradesh. There should not, therefore, be difficulty in treating that provision as a rule framed by the Governor under Article 309 of the Constitution.
14. It was next contended by Mr. Khare that, such a rule could be framed by the Governor only if there was no existing rule in an Act of the appropriate Legislature. Mr. Khare pointed out that, Section 9 of the Police Act does deal with the subject of resignation by police officers. He, therefore, contended that it is no longer open to the Governor of Uttar Pradesh to make a rule on the same subject. The point would have had some force, had there been inconsistency between the impugned provision and Section 9 of the Police Act. But I have shown above that, there is no such Inconsistency. Section 9 of the Police Act places one restriction on the right of police officers to resign. Paragraph 505 of Police Regulations places further restriction on that right. The restrictions being of different character, there is no clash between the two sets of the provisions. Although Section 9 of the Police Act does deal with resignation by police officers, the treatment of the subject there is not exhaustive. It was, therefore, open to the Governor to make other provisions on the same subject not inconsistent with that contained in Section 9, Police Act.
15. Mr. Khare pointed out that, the Government notification dated 26-12-1959 purports to have been issued under Section 46 of the Police Act, and not under Article 309 of the Constitution, The question arises whether the notification can still be supported as a rule framed by the Governor under Article 309.
16. In U.P. State v. Murtaza Alt, 1961 All LJ 287 : (AIR 1961 All 477), Desai, C. J. observed on page 290 that, an act of a delegate purporting to act under one authority cannot be sustained by reference to another authority. He relied upon P. Balakotaiah v. Union of India, AIR 1958 SC
17. In that case their Lordships of the Supreme Court observed on p. 236 thus:
"It is argued that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if It can be shown to be within its powers under any other rule, and that the validity of an order should be Judged on a consideration of its substance and not its form. No exception can be taken to this proposition, but it has not been the contention of the respondents at any stage that the orders in question were really made under Rule 148(3) of the Railway Establishment Code..........."
Those observations hardly lend support to the view taken in Murtaza Ali's case, 1961 All U 287 : (AIR 1961 All 477).
18. In Chandrakant v. Jasjit Singh, AIR 1962 SC 204 the Court had to consider the validity of certain rules, which had been framed under Sea Customs Act. It was held that, the power to make rules under Section 202(2) is not the only power which the Chief Customs Authority can exercise, and it is only too clear that power can also be derived from Section 9, if there be need. If it is necessary that the agents must carry out certain provisions of the Act, a rule can be made in the exercise of the two powers together. Though the impugned rules are headed as framed under Section 202, they cannot be questioned, if they carry out not only the special purposes of Section 202, but also certain other purposes of the Act, because the two powers will concur to sustain them. It is only when a rule or rules are pointed, out, which subserve neither the special purpose of the section nor the general purposes of the Act that they can be successfully questioned.
19. In view of the Supreme Court decision in Chandrakant's case, AIR 1962 SC 204, the view taken by this Court, in Murtza Ali's case, 1961 Alt LJ 287 : (AIR 1961 All 477) (FB) cannot be accepted as good law. Chandrakant's case, AIR 1962 SC 204, lends support to Mr. H.N. Seth's contention that, the impugned provision can be sustained under Article 309 of the Constitution, although Article 309 was not specifically mentioned in the Government notification dated 26-12-1959.
20. Under Article 309, the Governor may make rules regulating conditions of service of persons employed In the State. A rule restraining the right of resignation is a rule regulating condition of service. Such a rule could be made by the Governor under Article 309 of the Constitution. So, although the Government notification dated 26-12-1959 makes no mention of Article 309, paragraph 505 of Police Regulations may be sustained under Article 309 of the Constitution. The second proviso to paragraph 505 of Police Regulations appears to be valid.
21. Mr. H.N. Seth raised a subsidiary point. He pointed out that, the resignation and the notice given by the petitioner are contained in the same document Annexure 'B' to the petition is a copy of the application submitted by the petitioner to respondent No. 1. The material part of Annexure 'B' runs thus:--
"I most humbly submit my resignation from the post I have held for the last 12 years in the police department. I earnestly hope your honour would be pleased to order my early release from the job. This may kindly be treated as a two months' mandatory notice."
22. It will be seen that the petitioner served a notice along with his resignation. That is not contemplated by Section 9 of the Police Act. Section 3, Police Act contemplates two months' notice before the resignation, On a strict interpretation of Section 9, the notice must precede the resignation.
23. In the first place, departmental proceedings were pending against the petitioner in the beginning of 1962. So, under the second proviso to paragraph 505, Police Regulations, respondent No., 1 was entitled to refuse to accept the petitioner's resignation. Secondly, the resignation submitted by the petitioner on 22-1-1962 did not strictly comply with the requirement of Section 9, Police Act. The respondents are, therefore, justified in taking the view that, the petitioner is still a member of the police force. The departmental proceedings pending against him are competent.
24. The petition is dismissed with costs to respondent No. 3. The stay order dated 14-5-1962 is vacated.