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2020 DIGILAW 275 (GAU)

C/38, K. Malsawmtluanga v. State Of Mizoram

2020-02-25

AJIT BORTHAKUR

body2020
JUDGMENT 1. Heard Mr. A.R. Malhotra, learned counsel for the petitioner and Ms. H. Lalmalsawmi, learned Government Advocate, appearing for the State respondents. 2. By this petition under Article 226 of the Constitution of India , the petitioner is seeking setting aside and quashing the impugned order of discharge from service, dated 09.09.2015, issued by the respondent No. 6/the Commandant, 4 th I.R. Bn., Luangpawl, Mamit, Mizoram, accepting his voluntary resignation and the rejection of his appeal against the aforesaid order of discharge by the respondent No. 4/the Deputy Inspector General of Police, (Hqrs.), Mizoram at Aizawl. 3. The petitioner has contended that on the recommendation of the Selection Board, the respondent No. 5/the Assistant Inspector General of Police- I, Mizoram, by an Order No. E/PHQ/D/13/273, dated 14.05.2007, appointed the petitioner as a Constable in the Mizoram Police Department. After undergoing necessary training, he was attached with the 4 th I.R. Bn. under Mizoram Police Department. Thereafter, by an order, under Memo No. 4IR/R/PF/C-38/2509, dated 09.09.2015, the respondent No. 6 accepted his resignation tendered voluntarily under Rule 892 (3) of the Mizoram Police Manual, 2005 treating his preceding period of unauthorized absence from duty w.e.f. 02.09.2015 till the aforesaid date of issue of the discharge Order, dated 09.09.2015 as Extra Ordinary Leave. Against the aforesaid order of discharge from service, the petitioner preferred WP(C) No. 208/2016, which was disposed off vide Order, dated 16.02.2017, by this Court with a direction to prefer an appeal before the appropriate Appellate Authority on or before 15.03.2017, citing his grievances against the impugned order of discharge, dated 09.09.2015. In the aforesaid writ petition, the petitioner took the plea that his discharge from service was invalid and incompetent as he was discharged by the respondent No. 6, who was not his Appointing Authority. 4. Accordingly, as directed by this Court, the petitioner submitted an appeal on 10.03.2017 to the respondent No. 4/the Deputy Inspector General of Police, Govt. In the aforesaid writ petition, the petitioner took the plea that his discharge from service was invalid and incompetent as he was discharged by the respondent No. 6, who was not his Appointing Authority. 4. Accordingly, as directed by this Court, the petitioner submitted an appeal on 10.03.2017 to the respondent No. 4/the Deputy Inspector General of Police, Govt. of Mizoram, Aizawl, citing the grounds, inter-alia, in para No. 7 therein that as per Rule 892 (3) of the Mizoram Police Manual, 2005, the resignation of a Police Officer can be accepted only by the Appointing Authority and contrary thereto, in his case, although he was appointed by the respondent No. 5/the Assistant Inspector General of Police- I, Aizawl, he was discharged from service by the respondent No. 6/the Commandant, 4 th I.R. Bn., Luangpawl, Mamit on acceptance of his voluntary resignation letter, dated 29.08.2015. However, the respondent No. 4, after considering his appeal, by the impugned order, dated 25.04.2017, rejected his appeal on the ground, inter- alia, that although as per Rule 892 (3) of the Mizoram Police Manual, 2005, the resignation of a Police Officer can be accepted only by the Appointing Authority, according to Rule 389 and Annexure to Rule 1044 of the said Manual , the Appointing Authority of the petitioner was no other than the Commandant himself and as such, it was a valid order of discharge from service. 5. Mr. A.R. Malhotra, learned counsel for the petitioner, submits that according to Rule 8 of the Mizoram Police Manual, 2005 , the post of Superintendent of Police(s) is equivalent to the post of Commandant of Armed Battalions, Vice-Principal of Police Training Centre etc. However, as per Rule 35, the Superintendent of Police (Ministerial) in the office of the Director General of Police is under the respondent No. 5. Hence, a conjoint reading of Rule 8 and Rule 35 shows that the respondent No. 6 is inferior/subordinate in rank to the respondent No. 5 and as per Article 311(1) of the Constitution of India , and therefore, he had no authority to discharge the petitioner from service, for which reason, the impugned order of discharge of the petitioner is invalid and liable to be set aside. 6. Per contra, Ms. 6. Per contra, Ms. H. Lalmalsawmi, the learned Government Advocate, submits that as per Schedule-I of the Mizoram Police Service (Amendment) Rules, 2019, the Assistant Inspector General of Police- I and the Commandant, 4 th I.R. Battalion are of the same Grade of Mizoram Police and as such, equivalent post. Ms. Lalmalsawmi further submits that appeal against the order of a Commandant of Police Battalion lies to the Deputy Inspector General of Police of the Police Range as the Appellate Authority. 7. I have given due consideration to the above arguments advanced by the learned counsel of both sides and perused record. 8. On perusal of the averments made in the petition along with the documents annexed therewith, it appears that the impugned order of discharge of the petitioner from service was accepted by the respondent No. 6 under Rule 892 (3) of the Mizoram Police Manual, 2005, w.e.f. 09.09.2015 on acceptance of his voluntary resignation. Rule 892 (3) of the Mizoram Police Manual, 2005, reads as under- '892. Resignation in writing: (1) All resignations must be in writing, and no verbal resignation shall be accepted. (2) Under section 9 of the Police Act, two months notice of resignation is required. (3) Resignation of a Police Officer can be accepted by the appointing authority and, when accepted, it cannot be withdrawn without the permission of the accepting authority' 9. The requirement of 2 (two) months notice in advance for resignation before acceptance, as per Section 9 of the Indian Police Act, 1861 read with the above Rule 892 (2) of the Mizoram Police Manual 2005 , was done away with by Section 157 (1) of the Mizoram Police Act, 2011 (Act No. 3 of 2012), declaring that 'the Indian Police Act, 1861 in its application to the State of Mizoram is hereby repealed' and therefore, there is no corresponding independent provision under the Mizoram Police Act, 2011 (Act No. 3 of 2012). 10. The Mizoram Police Manual, 2005 shows that in the hierarchy of the Police Department, the Assistant Inspector General of Police is subordinate to the Deputy Inspector General of Police, who is the Appellate Authority in respect of the administrative actions of the Assistant Inspector General of Police/Superintendent of Police /Commandant of Police Battalion etc. 10. The Mizoram Police Manual, 2005 shows that in the hierarchy of the Police Department, the Assistant Inspector General of Police is subordinate to the Deputy Inspector General of Police, who is the Appellate Authority in respect of the administrative actions of the Assistant Inspector General of Police/Superintendent of Police /Commandant of Police Battalion etc. as they hold the same Grade in the Mizoram Police Service, as per the Mizoram Police Service Rules, 1997, 2008, 2012 and 2019 and as such, the post of Assistant Inspector General of Police- I is the coordinate/equivalent post of the Commandant of 4 th I.R. Bn. Therefore, acceptance of the petitioners voluntary resignation by the Commandant, 4 th I.R. Battalion, Luangpawl, Mamit, Mizoram, who is the authorized equivalent rank Officer of the Appointing Authority of the petitioner, who was the Assistant Inspector General of Police- I, Mizoram is valid in the eye of law, and it does not require any further interpretation. 11. As the petitioners resignation from service was accepted under Rule 892(3) of the Mizoram Police Manual, 2005, on 09.09.2015, by the respondent No. 6/the Commandant, 4 th I.R. Bn., Luangpawl, Mamit and thereafter, his appeal against the impugned resignation Accepting Officers order praying for cancellation and setting aside the aforesaid order was rejected, his relationship of employer and employee had come to an end on 09.09.2015. Moreover, the petitioners resignation was not withdrawn before its acceptance by the Appointing Authority and therefore, nothing can be done for his reinstatement in service. Now, there cannot be any question of his being taken back in service after lapse of more than 4 years after his resignation was accepted by the competent authority and his subsequent appeal for cancellation and setting aside of the resignation acceptance order was rejected by the Appellate Authority. The petitioners relationship as employee of the Mizoram Police Department got terminated with the acceptance of his voluntary resignation w.e.f. 09.09.2015. 12. Considered thus, this Court is of the considered opinion that the petition is not sustainable and accordingly, stands dismissed. The writ petition stands disposed off.