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Writ Petition No. 42 of 1962, decided on 26th March 1963.

rr. 16 (1), 1 (2) & 6 (iv)(a)‑Rules override Bahawalpur Police Rules‑Departmental inquiry against police officer under Bahawalpur Police Rules after promulgation of West Pakistan. Government Servants (Efficiency and Discipline) Rules, 1960‑Illegal‑ Inquiry and subsequent order of dismissal set aside.

Gul Muhammad Khan for Petitioner.

Ata Ullah Sajjad, A. A.‑G. and Ch. Farzand Ali for Res pondents.

‑This writ petition is by Muhammad Abdur Rashid who was an Assistant Sub‑Inspector of Police in the District of Rahimyarkhan. On a complaint filed against him, the Deputy Superintendent of Police conducted a preliminary enquiry and submitted a report to the Superintendent of Police that the petitioner had accepted Rs. 1,180 as illegal gratification. On the 2nd of January 1962, the Superintendent of Police ordered a departmental enquiry to be held against the petitioner. The District Inspector of Police was appointed as the enquiry officer. The formal departmental enquiry was held under the Bahawalpur Police Rules, and the District Inspector of Police submitted his report to the Superintendent of Police on the 5th of February 1962, recommending a major punishment. The Superintendent of Police forwarded the findings to the Deputy Inspector General of Police, who, vide his order dated the 21st of March 1962, issued a show‑cause notice to the petitioner to show cause why he should not be dismissed from service for having accepted Rs. 1,180 as illegal gratification. The petitioner replied to the show‑cause notice on the 5th of April 1962, and was dismissed from service by order of the Deputy Inspector‑General of Police, dated the 1st of May 1962. The petitioner filed an appeal which was dismissed by the Additional Inspector‑General of Police by his order dated the 31st of August 1962. Hence this writ petition.

2. The main attack on the legality of the order of dismissal is that the enquiry should have been held under the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, instead of the Bahawalpur Police Rules, and that as the requirements of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, were not complied with, the order of dismissal is illegal, void and inoperative. The writ petition was filed on the 24th of October 1962, under Article 98 (2) of the Constitution of the Republic of Pakistan. The prayer in the writ petition is that the orders dismissing the petitioner and dismissing his appeal be declared as being without lawful authority, and of no legal effect, because the proceedings taken by the respondents against him were without lawful authority, and the respondents directed to withdraw them.

3. As stated above, the Superintendent of Police ordered a departmental enquiry to be held against the petitioner on the 2nd of January 1962. This enquiry took place after the promulgation of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, on the 26th of July 1960. Rule 1 (2) of these rules provides that the rules apply to all Government servants under the rule‑making authority of the Governor of West Pakistan, except members of such services and holders of such posts as may be specified by Government by notification in the official Gazette. It has been conceded before us by the learned counsel for the respondents that no exception is made in the application of these rules to Government servants in the police department by a notification in the official Gazette. Consequently these rules apply to all police officers and override the relevant Bahawalpur Police Rules, because rule 16 (1) of the rules provides that these rules supersede all existing rules and instruc tions in regard to matters dealt with in these rules. The learned counsel for the respondent contends that as these rules were note specifically repealed or deleted under rule 16 (1), they continue in force by reason of Article 224 of the Constitution of Pakistan. 1956. This contention cannot be accepted, because rule 16 (1) clearly provides that these rules supersede all the existing rules and instructions in regard to matters dealt with in these rules. and there is no exception made in the case of the Bahawalpur Police Rules. There is no doubt, therefore, that the enquiry should have been held in accordance with the procedure laid down in these rules and not under the Bahawalpur Police Rules.

4. The petitioner was charged with a major penalty but the charges were not conveyed to the petitioner by the authority' as laid down in rule 6 (iv) (a). The authority also did not decide before ordering a formal enquiry whether the allegations, if established, would call for a major or minor penalty. These illegalities go to the root of the legality and competence of the proceedings. As the proceedings were not conducted in accor dance with the rules which govern the case, the enquiry must be set aside as illegal. The order of dismissal passed as a result of an enquiry, not held according to the rules, must also be set aside as being illegal. The dismissal being illegal, the petitioner continues to be in service on the day of his dismissal. This writ petition is, accepted with costs and this order will not debar the respondents from holding a regular enquiry in accordance with the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960.

K. B. A. Petition accepted.

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