JUDGMENT
K.B. Asthana, J.
1. This is a plaintiffs second appeal in a suit for declaration that the order of his dismissal passed by the Deputy Inspector General of Police, Western Range, was ultra vires, illegal and without jurisdiction and he continued to be in police service of Uttar Pradesh. The suit was dismissed by the trial Court and the lower appellate court confirmed en appeal the decree of the trial Court.
2. The two main questions which arise for decision in this appeal are; (1) whether the suit of the plaintiff was barred by the principles of constructive res judicata, his writ petition under Article 226 of the Constitution for similar relief having been dismissed by the High Court and (2) whether the Deputy Inspector General of Police was competent to dismiss the plaintiff from service of the Police Force of Uttar Pradesh, he being an officer below the rank of the Inspector General by whom the plaintiff was appointed as Sub Inspector of Police. Some other questions did arise in the courts below on the pleadings of the parties but I am not concerned in this appeal with those questions. The suit of the plaintiff was dismissed mainly on the finding that the Deputy Inspector General of Police would be deemed to be the authority who appointed the plaintiff as Sub Inspector of Police and the order of dismissal passed by him was valid and effective. On the issue of res judicata both the courts below decid-
ed against the defendant and held that the suit of the plaintiff was not barred by principles of res judicata.
3. I have heard Sri G. N. Upadhya, learned Junior Standing Counsel for the respondent, on the question whether the suit of the plaintiff was barred by the principles of res judicata. The plaintiff Nawab Husain filed a Civil Miscellaneous Writ No. 1759 of 1956 under Article 226 of the Constitution in this Court. A writ in the nature of certiorari was sought for quashing of the disciplinary proceedings or the departmental proceedings taken by the Superintendent of Police, Etah against him. The petition was grounded on the allegations that the petitioner was never afforded any reasonable opportunity to meet the case against him and that the action taken against him was malicious, mala fide and for ulterior purposes. Nowhere in the petition any mention was made of the authority who appointed the petitioner as Sub Inspector nor any ground was raised that the order of dismissal was bad because it was passed by an authority inferior in rank to the authority who appointed the petitioner as Sub Inspector of Police. The learned Single Judge dismissed the writ petition on the finding that the petitioner failed to establish any lack of opportunity or mala fides of the departmental officers against him. This decision of the learned Single Judge was affirmed by a Division Bench of this Court who by an order dated 23-10-1959 dismissed the Special Appeal. Nawab Husain then instituted the suit which has given rise to this appeal against the State of Uttar Pradesh.
4. Sri Upadhya for the respondent State contended that though the validity of the order of dismissal was not questioned by Nawab Husain on the ground that the Deputy Inspector General of Police was not the appointing authority and he was lower in rank than the Inspector General of Police who actually made the appointment of the petitioner, Nawab Husain, yet this ground could have been raised by him or might have been raised by him and ought to have been raised by him in the writ petition itself. Therefore, a subsequent suit raising those grounds would be barred by principles of constructive res judicata as the relief in the two proceedings was substantially the same and based on the same cause of action. Reliance has been placed by the learned counsel on a decision of the Supreme Court in the case of Devilal Modi v. Sales Tax Officer, Ratlam, AIR 1965 SC 1150. In that case the learned Judges of the Supreme Court held that while deciding the writs even though involving violation of fundamental rights the principles of res judicata cannot be Ignored and general principles of res judicata include the applicability of prin-
ciples of constructive res judicata. The learned Judges of the Supreme Court held that a second petition under Article 226 of the Constitution for the same relief was barred by the principles of res judicata, though based on different grounds, which were not raised and decided in a prior writ petition for the same relief which was dismissed. No doubt in so far as the decision cited goes, it declares the law with regard to a second writ petition under Article 226 of the Constitution filed in the High Court or under Article 32 of the Constitution filed in the Supreme Court for a relief which was the subject matter of a prior writ petition based on different grounds.
5. Sri K. C. Saxena, learned counsel for the plaintiff appellant, submitted that the decision of the Supreme Court in Devilal Modi’s case (supra) relied upon by the learned Junior Standing Counsel does not lay down the law when the question is to be considered in regard to the bar of res judicata being pleaded in a suit on the ground that a previous writ petition based on the same cause of action for a similar relief had been filed under Article 226 of the Constitution and dismissed. Learned counsel submitted that the law as to how far the decision in a writ petition will operate as res judicata in a subsequent suit for the same relief has been laid down by the Supreme Court in the case of I. L. Janakirama Iyer v. P. M. Nilakanta Iyer, AIR 1962 SC 633 wherein it was laid down that where the court is dealing with a suit the only ground on which res judicata can be urged against such a suit can be the provisions of Section 11 and no other, and where section 11 was inapplicable it would not be permissible to rely upon the general principles of res judicata. The learned counsel contended that in regard to suits the Supreme Court has ruled out the applicability of any general principles of res judicata. It appears to me that Sri K. C. Saxena appears to state the preposition too narrowly. It would be seen the Supreme Court’s decision in the case of Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153 declared that a decision in an earlier writ petition under Article 226 on merits will operate as res judicata in a subsequent suit involving same question and for same reliefs. The view taken by the Supreme Court was that the provisions of Section 11, C. P. Code were not exhaustive with respect to earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and on the general principles of res judicata any previous decision on a matter in controversv decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide, it
will operate as res judicata in a subsequent regular suit. It was held that the decision of the High Court on a writ petition under Article 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter. As appears from the report the above was the majority view of the Court and the question whether the principles of constructive res judicata can be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceedings was left open. The learned Judges took care to observe that they made it clear that it was not necessary and they had not considered that the principles of constructive res judicata could be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceeding was not so raised therein. On a consideration of the law as laid down by the Supreme Court in the above three cases I am inclined to agree with the alternative argument of Sri K. C. Saxena, learned counsel for the plaintiff appellant, that the law as declared by the Supreme Court in regard to the plea of res judicata barring a subsequent suit on the ground of dismissal of a prior writ petition under Article 226 of the Constitution is that only that issue between the parties will be res judicata which was raised in the earlier writ petition and was decided by the High Court after contest. Since no plea questioning the validity of the dismissal order based on the incompetence of the Deputy Inspector General of Police was raised in the earlier writ petition filed by the plaintiff in the High Court under Article 226 of the Constitution and the parties were never at issue on it and the High Court never considered or decided it, I think it is competent for the plaintiff to raise such a plea in the subsequent suit and the bar of res judicata will not apply.
8. But for the decision of the Supreme Court in the case of Gulabchand Chhotalal Parikh, AIR 1965 SC 1153 (supra) the law declared in the case of AIR 1962 SC 633 (supra) would have ruled supreme. But that decision to a great extent has been whittled down by the Supreme Court in the later case of Devilal. AIR 1965 SC 1150. It is only to the extent that the Supreme Court has explained in the later case of Gulabchand Chhotalal Parikh, AIR 1965 SC 1153 the law declared in the earlier case of AIR 1962 SC 633 (supra) stands modified. The case of AIR 1965 SC 1150 will not be an authority as to the declaration of law with regard to the applicability of the doctrine of principles of res judicata in a subsequent suit. The authority for a subsequent suit is the case
of Gulabchand Chhotalal Parikh, AIR 1965 SC 1153 (supra) decided by the Supreme Court. I am, therefore, unable to accept the contention of the learned Junior Standing Counsel that the suit of the plaintiff was barred by the principles of constructive res judicata and uphold the decision of the court below on that issue.
7. Now coming to the question whether the Deputy Inspector General of Police was the authority who appointed the plaintiff as Sub Inspector of Police, I have much difficulty in accepting the findings of the courts below. Sri Saxena for the plaintiff appellant contended that the learned Judge of the Court below was in error in holding that the confirming authority being the Deputy Inspector General of Police would be also the appointing authority of the plaintiff, although on behalf of the State it was admitted in the written statement that the plaintiff was appointed as Sub Inspector of Police’ by the Inspector General of Police. The learned counsel further contended that the finding of the Court below that the Deputy Inspector General of Police was the confirming authority and it was on the orders of the Deputy Inspector General of Police that the plaintiff was confirmed as Sub Inspector of Police was not based on any evidence on record and was vitiated having been arrived at by misreading and misinterpreting the Government notification which did not at all apply to the case of the plaintiff. I am inclined to accept both the contentions put forward by the learned counsel for the appellant.
8. It would be seen that in his plaint the plaintiff in paragraph 2 definitely pleaded that he was appointed as Sub Inspector of Police by the Inspector General of Police. In the written statement filed on behalf of the defendant State it was admitted that the plaintiff was appointed by the Inspector General of Police. Likewise, the plaintiff in paragraph 2 of his plaint had pleaded that he was confirmed in his appointment as Sub Inspector of Police by the Inspector General of Police, but in the written statement filed on behalf of the defendant State, it was stated that the plaintiff was confirmed by the Deputy Inspector General of Police. Thus in so far as the appointment of the plaintiff as Sub Inspector of Police was concerned, the parties were not at issue. On the pleadings it was clear that the plaintiff was appointed as Sub Inspector of Police by the Inspector General of Police, U. P. The parties were at issue only on the question whether the Inspector General of Police confirmed the plaintiff as Sub Inspector of Police or the Deputy Inspector General of Police confirmed him. In evidence before the Court the plaintiff on
oath stated that he was confirmed as the Sub Inspector of Police by the Inspector General of Police, U. P. He was not cross-examined on behalf of the defendant on this statement. Neither on behalf of the defendant was it put to the plaintiff when he was in the witness-box that he was confirmed by the Deputy Inspector General of Police. When it came the turn of the defendant to adduce its evidence it contended itself by producing merely a clerk of the police v department who stated that all the original orders with regard to the plaintiff had been lost and are not traceable. No definite evidence was produced on behalf of the defendant proving the confirmation of the plaintiff as Sub Inspector of Police by the Deputy Inspector General of Police of the Range. It appears that during the course of the argument a notification published in the U. P. Police Gazette dated 4th February 1935 was produced under the signature of the Deputy Secretary informing that the Governor in Council had decided that the Deputy Inspector General of Range shall be the appointing authority for Sub Inspectors of Police of all classes recruited for the service and posted in district in his Range. The same notification further contained a paragraph which ran as follows:–
“The selection of Sub Inspectors cadets for the Police Training School will, however, be made by the Inspector General of Police in accordance with the Rules for the Police Training School, Moradabad,, Part II. On the completion of the Police Training Session the Inspector General of Police will decide how many of the successful candidates should be allowed to each Range. Deputy Inspectors General will then issue orders appointing successful cadets as supernumerary Sub Inspectors or Sub Inspectors on probation, as the case may be, in districts in their Ranges and ‘will also confirm such officers’ (underlining (here in ‘ ‘) mine) on the conclusion of their probationary periods.”
9. The courts below relied upon this notification and seems to have been so much overwhelmed by this notification that they lost sight of the fact that it was not applicable to the appellant. The Court below thought since the Deputy Inspector General of the Range was the appointing authority and the confirming authority so a presumption must be drawn that the plaintiff was confirmed by the Deputy Inspector General of Police and his testimony on oath to the contrary could not be believed. The paragraph of the notification which I have called out above and the portion which I have underlined clly shows that the Deputy Inspector-General of Police, if at all, was competent to confirm only those Sub Inspectors of Police whom he could appoint as supernumerary Sub Inspectors or Sub Inspec-
tors on probation. Now in the instant case it was admitted on behalf of the defendant that it was the Inspector General of Police who appointed the plaintiff as Sub Inspector. From the evidence on record it appears that the first appointment of the plaintiff after he had passed from the Police Training School was made by the Inspector General of Police and this appointment was on probation for a period of eighteen months. This is admitted by the defendant. It is cl, therefore, on their own showing that the defendant had failed to establish that the plaintiff was appointed after finishing his course successfully from the Police Training School as Sub Inspector on probation by the Deputy Inspector General of the Range. Since plaintiff was not a Sub Inspector who was appointed by the Deputy Inspector General of Police he would not be an officer or Sub Inspector who could be confirmed by him. It is clear therefore, that the whole hypothesis on which the Court below based its findings vanishes when the true effect of the notification in question is appreciated. That would be the natural construction of the notification also. It is obvious that when the Deputy Inspector General of Police appoints a Sub Inspector on probation or in a supernumerary capacity ordinarily it should be that officer who should be the confirming authority, but it is unnatural to contemplate that when the Inspector General of Police appoints a Sub Inspector in a supernumerary capacity or in a probationary capacity even then the Deputy Inspector General of Police, a subordinate officer, would confirm.
10. During the course of argument before me the learned Junior Standing Counsel found it difficult to explain that If the notification in question applied then how the plaintiff was appointed as Sub Inspector on probation by the Inspector General of Police. The only answer which the learned counsel gave was that the plaintiff was appointed on a date prior to the date on which the above-said notification became effective. If that be so, even then this notification would not apply to the plaintiff as his appointment as Sub Inspector of Police on probation by the Inspector General was under some other rule. Had the relevant record relating to the plaintiff been preserved by the Police Department perhaps the matter would have been put more clly before the Court. However, for the loss of the official record the defendant itself is to blame. No attempt was made in the courts below on behalf of the defendant to adduce any secondary evidence to prove the fact that it was the Deputy Inspector General of Police who actually passed the confirmation order in regard to the plaintiff. If the abovesaid notification cannot sustain the case of the defen-
dant as it did not apply to the plaintiff, the defendant cannot derive the benefit of any presumption from it. I have already observed above that the only ground on which the Court below who was the final court of fact, held that the plaintiff was confirmed by the Deputy Inspector General of Police was this notification. Since that position is not tenable, I am constrained to hold that the finding is not binding on me in second appeal.
11. The question then is whether the plaintiff’s case that the Inspector General of Police confirmed him is true. There seems to be no reason why the plaintiff ought not to be believed when he testified on oath before the Court that the Inspector General of Police confirmed him as Sub Inspector, more so when nothing has been suggested in the cross-examination of the plaintiff to the contrary.
12. However, the view ultimately on law which I am taking, perhaps the question as to who confirmed the plaintiff may not be so material. The learned Junior Standing Counsel tried to urge that whoever confirms an officer would be deemed to appoint him to the post as only it is after confirmation that a person gets a permanent appointment. The learned Junior Standing Counsel drew my attention to certain cases, Nand Shankar v. State of Rajasthan, AIR 1957 Raj 148, Sadhuram v. Engineer, Telegraph, Jubbulpore, AIR 1957 Madh Pra 52 in support of his proposition that in fact the plaintiff would be deemed to have been appointed by the Inspector General of Police for eighteen months at first and then when he was confirmed by the Deputy Inspector General of Police he would be deemed to have been appointed substantively by the Deputy Inspector General of Police and therefore for the purposes of the application of the provisions of Article 311(1) of the Constitution and its precursor, Section 240(3) of the Government of India Act 1935, it would be the Deputy Inspector General of Police by whom he was appointed as Sub Inspector. I am afraid the way in which the learned counsel has put the argument before me amounts to setting up a new case in second appeal. It was never the case pleaded in the written statement on behalf of the State that the initial appointment of the plaintiff by the Inspector General of Police was only for a period of eighteen months at the expiry of which, unless a second appointment order was passed the plaintiff would not have been a Sub Inspector in the Police Force of Uttar Pradesh, What the learned counsel contends for is that the plaintiff got two different appointments from the State of Uttar Pradesh, his first appointment for eighteen months was by the Inspector General of Police and then his second appointment was by the Deputy
Inspector General of Police in a substantive capacity. Far from the complete lack of basic data on which this point could be made out I do not find anything on record which could be put forward before me by the learned Junior Standing counsel to show that the Deputy Inspector General of Police did actually confirm the plaintiff immediately on the expiry of eighteen months from the date of the order of appointment by the Inspector General of Police. If that were not shown, and the argument of the learned Junior Standing counsel were accepted as a good argument, then any hiatus between, the two dates, that is the expiry of eighteen months period of probation and the order of confirmation passed by the Deputy Inspector General of Police would remain uncovered and any order passed later on will amount to an order of fresh appointment. I would prefer to rely on the view taken by a Division Bench of the Punjab High Court in the case of Gurmukh Singh v. Union of India, AIR 1963 Punj 370. Falshaw Chief Justice in the course of the judgment of the Court with which Tek Chand J. agreed while referring to the case of AIR 1957 Raj 148 (supra) cited before them observed:
“With due respect I doubt the correctness of this view and I am of the opinion that confirmation to substantive rank is something different from appointment.” With great respect to the learned Judge I agree with this observation.
13. It having been admitted by the defendant that the plaintiff was appointed by the Inspector General of Police even if it be assumed for a moment that later on the power of appointment and confirmation was conferred and vested in the Deputy Inspector General of Police, that, to my mind, would not make any difference. In so far as the plaintiff was concerned the fact that he was appointed by the Inspector General of Police as a member of the Police Force to the post of Sub Inspector, for the purpose of Article 311(1), it would always be the Inspector General of Police or an authority higher In rank than him who will have the power to dismiss him from service.
14. The learned Junior Standing Counsel then referred to paragraph 520 of the Police Regulations and contended that the Deputy Inspector General of Police of the Range was always the confirming authority of the probationers and even if the above-said notification did not apply then under paragraph 520 the Deputy Inspector General of Police must have confirmed the plaintiff. Firstly, I think the learned Junior Standing Counsel is now not entitled to rely on paragraph 520 of the Police Regulations the case in the Court below of the defendant being based on the notification published in the Police Gazette of U. P. in February 1935 which
has been discussed above. Secondly, I am, unable to read in paragraph 520 of the Police Regulations that the Inspector General of Police ceased to have any power to confirm or not to confirm a Sub Inspector of Police. I cannot read paragraph 520 of the Police Regulations as depriving the Inspector General of Police of his superior powers under the Police Act to confirm or not to confirm an officer of the Force. Thus the provisions of Paragraph 520 of the Regulations also do not help the learned Junior Standing Counsel so as to eliminate all possibilities of the plaintiff having been confirmed after the successful probation by the Inspector General of Police as Sub Inspector of Police.
15. Moreover, as I have observed above the initial appointment of the plaintiff as Sub Inspector though on probation being made by the Inspector General of Police and that fact having been admitted by the defendant, no further scrutiny was called for in the matter. The provisions of Article 311(1) and its precursor Section 240(3) of the Government of India Act do not make any distinction as regards an appointment on probation or ae regards substantive appointment. Once even for taking a person on probation and posting him on a post to judge his capacity the Inspector General of Police passed the order, it would always be the Inspector General of Police who would be deemed to have appointed him even though later on, on the peculiar rules of the department that person may have been confirmed on the orders of some other officer or under some peculiar conditions. That event later on in his service, to my mind, would not wipe out the initial appointment of the plaintiff as Sub Inspector of Police by the Inspector General of Police. Once the theory of the learned Junior, Standing Counsel that in fact there were two different appointments on two different points of time of the plaintiff as Sub Inspector of Police fails there remains nothing to establish that the plaintiff was dismissed by an authority not below the rank or subordinate to the one by which he was appointed. I hold that the plaintiff has established that he was appointed on probation as Sub Inspector for eighteen months by the Inspector General of Police and after successful probation he was confirmed by the Inspector General of Police as Sub Inspector. The impugned order of dismissal dated 20-12-1954 having been passed by the Deputy Inspector General of Police, an authority admittedly subordinate and lower in rank to the Inspector General of Police, violated the provisions of Article 311(1) of the Constitution and therefore was void and ultra vires.
16. As a result of the discussion above, this appeal is allowed. The decree of the court below is set aside. The plaintiff's suit shall stand decreed for all the reliefs claimed with costs throughout.