Appeal Delay Under 1991 Police Rules Cannot Defeat Remedy Under 2007 Act: Uttarakhand HC Sets Aside Rejection Of Dismissed Constable's Plea
Image : Advocate Kartikey Hari Gupta
The Uttarakhand High Court has held that the limitation prescribed in the 1991 Rules for filing an appeal cannot be applied where it is inconsistent with the provisions of the Uttarakhand Police Act, 2007. The Court observed that rules framed under a repealed statute must give way to the provisions of the subsequent Act to the extent of inconsistency.
Justice Manoj Kumar Tiwari was hearing a writ petition filed by a constable challenging his dismissal from service and the subsequent rejection of his appeal on the ground of delay. The petitioner had been dismissed from service by order dated 05.09.2012 for unauthorised absence, and his appeal was rejected on 05.05.2014 on the ground that it was filed beyond the prescribed period of three months under the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991.
The petitioner contended that the 1991 Rules were framed under the Police Act, 1861, which stood repealed upon enactment of the Uttarakhand Police Act, 2007. It was argued that Section 26 of the 2007 Act provides for appeal but does not prescribe any limitation, and therefore, the limitation under the 1991 Rules could not be invoked. The State, relying on Section 86 of the 2007 Act, contended that the earlier Rules continue to apply by virtue of the saving clause.
The Court examined Section 86(2) of the Uttarakhand Police Act, 2007 and noted that while rules framed under the repealed Act are saved, they continue only insofar as they are not inconsistent with the provisions of the new Act. It found that the 2007 Act does not prescribe any limitation for filing an appeal, whereas the 1991 Rules impose a time limit.
The Court held that to the extent of such inconsistency, the provisions of the 1991 Rules must yield to the Uttarakhand Police Act, 2007. It observed that the limitation clause in Rule 20(6) of the 1991 Rules cannot be applied after the enforcement of the 2007 Act.
“… the provision regarding limitation for filing appeal, as mentioned in Clause (6) of Rule 20 of the Rules of 1991 cannot have any application in view of latter half of Section 86(2) of Uttarakhand Police Act, 2007, which has repealed the parent Act under which the said rules were framed,” the Court observed.
On this reasoning, the Court found that the appellate authority erred in dismissing the petitioner's appeal solely on the ground of delay by applying the limitation under the 1991 Rules.
Accordingly, the High Court allowed the writ petition, set aside the order dated 05.05.2014 passed by the appellate authority, and remanded the matter for consideration of the appeal on merits within two months.
Case Title: Pradeep Singh Bhauryal vs. Deputy Inspector of P.A.C. Police Headquarter & Anr. [Writ Petition No. 1675 of 2017 (SS)]