JUDGMENT
Narayan Roy, J.
1. Heard Mr. P.K. Shahi, learned Counsel appearing on behalf of the petitioner, and JC to SC 9.
2. By this writ application, the petitioner has challenged the order, as contained in Annexure 1 dated 17-8-2000, passed by respondent No. 2, Director General-cum-Inspector General of Police, Bihar, Patna, in purported exercise of power under Rule 853-A of the Bihar Police Manual, 1978 (hereinafter to be referred to as “Manual”), whereby and whereunder the order of reinstatement dated 21 -3-1997, as contained in Annexure 11, has been reviewed and the petitioner has been dismissed from service.
3. Learned Counsel appearing on behalf of the petitioner firstly submitted that a departmental proceeding, which was initiated against the petitioner and two others, namely, Havildar Zafarullah and constable Deo Narain Singh culminated in dismissal of the petitioner and Deo Narain Singh from services. It is further submitted that so far as the petitioner is concerned, he was found guilty and dismissed vide order as contained in Annexure 10 dated 6-7-1994. It is further submitted that the order of dismissal, as contained in Annexure 10, was challenged by the petitioner by way of appeal before the Deputy Inspector General of Police, Saran Range, Chapra.
4. The appeal filed by the petitioner, however, was allowed and order of dismissal was set aside and the petitioner was directed to be reinstated in service. The order, as contained in Annexure 11, passed on 21-3-1997, however, has been reviewed vide order, as contained in Annexure 1.
5. Learned Counsel appearing on behalf of the petitioner then submitted that the order of reinstatement passed as far back as on 21-3-1997 could not have been reviewed after a lapse of more than three years. It is also argued that the power as envisaged under Rule 853-A of the Manual was not exercisable in the given facts and circumstances of the case, and, therefore, the order impugned, as contained in Annexure 1, is wholly without jurisdiction and non-sustainable in law. It is also submitted by learned Counsel appearing on behalf of the petitioner that the order impugned, as contained in Annexure 1, must be held to be tainted with mala fide, inasmuch as that when the petitioner had approached this Court against an order of transfer in Civil Writ Jurisdiction Case No. 6417 of 2000, this Court had granted interim order of stay of the order of transfer, as contained in Annexure 2. Learned Counsel further submitted in this connection that during the pendency of the writ application aforesaid, the order, as contained in Annexure 1, was passed, and ultimately, the writ application aforesaid was disposed of and the order of transfer was set aside vide order, as contained in Annexure-3.
6. A counter affidavit has been filed on behalf of the respondents stating therein, inter alia, that respondent No. 2, Director General-cum-Inspector General of Police, Bihar, Patna, was well within his jurisdiction in reviewing the order, as contained in Annexure 11 and the power of review, as envisaged under Rule 853-A of the Manual has been exercised. However, in the counter affidavit, nothing has been said as 1o whether the order of reinstatement passed against the co-proceedee, namely, Deo Narain Singh, was also reviewed in the like manner, as it has been done in the case of the petitioner. At the same time, nothing has been stated in the counter affidavit as to when there was interim order of stay of transfer passed against the petitioner, as contained in Annexure 2, the order impugned was passed.
7. Rule 851 of the Manual talks about filing of an appeal against the order of dismissal, removal, reduction, withholding of promotion or periodical increment, suspension with loss of pay, removal from any office of distinction or special emolument etc., Rule 852 of the Manual is the procedure to deal with an appeal filed under Rule 851 of the Manual. Rule 853 of the Manual talks about filing of memorial and revision, whereas Rule 853-A talks about the power of the Director General-cum-Inspector General of Police to suo motu call for the records and examine the same. Rule 853-A of the Manual reads as under:
853-A. (a) Inspector-General may call for the file in any case even when no appeal lies and pass such order as he may deem fit. The Deputy Inspector-General may call for any file but he should refer it to the Inspector-General with his recommendation for his order. The above action should be taken within a reasonable time from the date of final order in departmental proceeding.
(b) Notwithstanding anything contained in these Rules the State Government may call for the proceeding in any disciplinary case even when no appeal or memorial lies, and pass such order as it may deem fit.
(c) When an appeal has been filed and the Inspector-General on applying him mind thinks that he should enhance the punishment, he can dismiss the appeal but must simultaneously mention in that order that as per powers given in the Rule 853-A (a), he has decided to review it for enhancement and take action for obtaining a show-cause, etc., where necessary.
Sub-rule (a) of Rule 853-A authorises the Inspector General of Police to call the file in any case even when no appeal lies and pass such order as he may deem fit. The above action, however, should be taken within a reasonable time from the date of final order in departmental proceeding. Sub-rule (b) of Rule 853-A of the Manual talks about the power of the State Government to call for the proceedings in any disciplinary case even when no appeal or memorial lies and pass such order, as it may deem fit, whereas Sub-rule (c) of Rule 853-A of the Manual states that when an appeal has been filed and the Inspector General of Police on application of his mind thinks that he should enhance the punishment, he can dismiss the appeal, but must simultaneously mention in that order that as per powers given in Rule 853-A (a) he has decided to review it for enhancement and take action for obtaining show-cause etc. where it may deem necessary.
8. The power, which has been exercised in the given case by respondent No. 2 is not the power so envisaged under Sub-rule (c) of Rule 853-A of the Manual, because there was no appeal against the order of reinstatement and the Director General-cum-Inspector General of Police has neither enhanced the punishment nor has reduced the same, rather he has reviewed the order passed by the Deputy Inspector General of Police on appeal, whereby and whereunder the petitioner (delinquent) was directed to be reinstated. So far Sub-rule (a) of Rule 853-A is concerned, this power is exercisable by the Inspector General of Police even when no appeal lies and may pass such order as he may deem fit within a reasonable this from the date of final order in departmental proceeding. Here it would appear that an appeal was already filed by the petitioner before the Deputy Inspector General of Police against the order of dismissal under Sub-rule (b) of Rule 851 of the Manual. It would further appear in this matter that the order of dismissal was set aside by the appellate authority and the petitioner was directed to be reinstated vide order, as contained in Annexure-11 dated 21-3-1997, Even assuming that the order passed by the appellate authority was reviewed in exercise of the power under Rule 853-A (a) of the Manual, it could have been exercised within a reasonable period, but could not have been exercised in any manner beyond a period of more than three year’s. The provision as envisaged under Rule 853-A of the Manual, in that view of the matter, is not applicable in the facts and circumstances of the case.
9. Besides these questions, it appears to me that no such order lias been passed in the case of co-proceedee, Deo Narain Singh, who was reinstated in the service like the petitioner vide order as contained in Annexure-11. It further appears that the petitioner had come to this Court earlier against the order of transfer after his reinstatement and this Court vide order, as contained in Annexure 2, stayed the order of transfer and, ultimately, set aside the order of transfer vide order as contained in Annexure 3. It further appears that during the pendency of the aforesaid writ application, the order, as contained in Annexure 1, was passed. The circumstances, however, as discussed above, do not show that the authorities took the decision, as contained in Annexure 1, out of vengeance and mala fide, but in any view of the matter, the powers so exercised by respondent No. 2 must be held to be wholly without jurisdiction and discriminatory. I have already discussed above that the power as envisaged under Rule 853-A of the Manual was not exercisable in the facts and circumstances of the case at hand, as no power of review has been vested in the Director General- cum-Inspector General of Police to review an order of reinstatement without any appeal being filed by the authorities concerned.
10. Having heard Counsel for the parties and considered the facts and circumstances of the case, it is held that the order, as contained in Annexure 1, is wholly without jurisdiction and contrary to the provisions of Rule 853-A of the Manual and not sustainable in law.
11. In the result, this application is allowed the order, as contained in Annexure 1 is set aside and the order, as contained in Annexure 11, passed by the Deputy Inspector General of Police is restored with all consequential benefits. No order as to costs.