# Keshav Prasad Dubey v. The State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1213
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-20
- **Case number:** Writ-A No. 20451 of 2019
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/keshav-prasad-dubey-v-the-state-of-u-p-ors-45166
- **Pages:** 6

## Headnote

A. Suspension - Rule 17(1) (a) - The Uttar
Pradesh
Police
Officers
of
the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991 - the exercise of
power
of
suspension
by
any
other
authority
not
below
the
rank
of
Superintendent of Police who has been
authorized by the appointing authority in
this behalf, and in view thereof the
exercise of the power by the authority
who has been granted authorization by
the appointing authority would also be a
valid exercise of power
The power of authorization contemplated under Rule
17(1)(a) having duly been exercised by the
appointing authority i.e., the Deputy Inspector
General of Police and the necessary authorization
having been issued to the Superintendent of Police
for exercising the aforesaid power, the order of
suspension which has been passed by the
Superintendent of Police, Chitrakoot cannot be said
to suffer from want of authority. (para 24)
B.
Delegation
of
a
discretionary
administrative power - Scope - delegatus non
potest
delegare
-
delegation
of
an
administrative power is permissible when the
relevant law permits the same and statutes
frequently make a provision enabling the
authority on which powers are conferred in
the first instance to delegate the same to
subordinate officers
The lawful exercise of power is that it should be
exercised by the authority upon whom it is conferred
and by no one else. The exception to this principle of
the inalienable discretion is the exercise of a
statutory power would be in a case where the
authority on whom the power is originally conferred
by a statute is expressly authorized in terms thereof
to delegate the said power by grant of authorization
to some other authority. This principle applies to
delegation of all forms of power, including
administrative powers, conferred in terms of a
statutory provision.
Writ Petition Disposed of.

List of cases cited

## Text

2 All. Keshav Prasad Dubey Vs. TheState of U.P. & Ors.
1213

14. A writ in the nature of mandamus
is issued commanding the opposite parties
to consider the candidature of the
petitioner and appointing him on the post
of Lekhpal under the 2% reservation for
the category of dependant of freedomfighters in view of the decision of this
Court in re: Pawan Kumar (supra).

15. The compliance of the aforesaid
order shall be made within two months
from the date of production of the certified
copy of the order of this Court.

16. Writ petition is allowed.

17. No order as to costs.
----------
(2020)02ILR A1213

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2019

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-A No. 20451 of 2019

Keshav Prasad Dubey ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Preetpal Singh Rathore, Sri Shravan
Kumar

Counsel for the Respondents:
C.S.C.

A. Suspension - Rule 17(1) (a) - The Uttar
Pradesh
Police
Officers
of
the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991 - the exercise of
power
of
suspension
by
any
other
authority
not
below
the
rank
of
Superintendent of Police who has been
authorized by the appointing authority in
this behalf, and in view thereof the
exercise of the power by the authority
who has been granted authorization by
the appointing authority would also be a
valid exercise of power
The power of authorization contemplated under Rule
17(1)(a) having duly been exercised by the
appointing authority i.e., the Deputy Inspector
General of Police and the necessary authorization
having been issued to the Superintendent of Police
for exercising the aforesaid power, the order of
suspension which has been passed by the
Superintendent of Police, Chitrakoot cannot be said
to suffer from want of authority. (para 24)
B.
Delegation
of
a
discretionary
administrative power - Scope - delegatus non
potest
delegare
-
delegation
of
an
administrative power is permissible when the
relevant law permits the same and statutes
frequently make a provision enabling the
authority on which powers are conferred in
the first instance to delegate the same to
subordinate officers
The lawful exercise of power is that it should be
exercised by the authority upon whom it is conferred
and by no one else. The exception to this principle of
the inalienable discretion is the exercise of a
statutory power would be in a case where the
authority on whom the power is originally conferred
by a statute is expressly authorized in terms thereof
to delegate the said power by grant of authorization
to some other authority. This principle applies to
delegation of all forms of power, including
administrative powers, conferred in terms of a
statutory provision.
Writ Petition Disposed of.

List of cases cited

1. Barium Chemicals Ltd. & anr. V. Company
Law Board & ors AIR 1967 SC 295

2. Sahni Silk Mills (P.) Ltd. & anr V. Employees'
State Insurance Corporation (1994) 5 SCC 346

3. Marathwada University V. Seshrao Balwant
Rao Chavan (1989) 3 SCC 132
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Preet Pal Singh Rathore,
learned counsel for the petitioner and Sri
Mata Prasad, learned Standing Counsel
appearing for the State-respondents.

2. The present petition has been filed
seeking to raise a challenge to the order
dated 24.11.2019 passed by the fourth
respondent in terms of which the petitioner
has been placed under suspension pending
initiation of departmental proceedings.

3. The principal contention sought to
be raised is that the appointing authority of
the petitioner, who is presently working on
the post of Inspector, is the Deputy
Inspector General of Police and in view
thereof the authority competent to pass the
order
of
suspension
would
be
the
appointing authority i.e. the Deputy
Inspector General of Police and not the
Superintendent of Police who has passed
the order impugned. Reliance is sought to
be placed upon Rule 17(1)(a) of The Uttar
Pradesh Police Officers of the Subordinate
Ranks (Punishment and Appeal) Rules,
1991 (in short 'the Rules, 1991') in support
of the aforesaid contention.

4. Per contra, learned Standing
Counsel, on the basis of instructions
received, submits that in the instant case
the appointing authority i.e. the Deputy
Inspector General of Police, Chitrakoot
Dham, Range Banda in terms of an order
dated 22.11.2019, exercising powers under
Rule 17(1)(a) of the Rules, 1991, has
authorised the Superintendent of Police,
Chitrakoot to exercise the powers of
suspension in respect of his sub-ordinate
officers including Inspectors and SubInspectors, in cases where departmental
proceedings were contemplated against
them.

5.

It
is
submitted
that
the
Superintendent
of
Police,
Chitrakoot
having been duly authorised by the
appointing authority i.e. the Deputy
Inspector General of Police by exercising
powers under Rule 17(1)(a) the order of
suspension cannot be stated to have been
passed
without
authority
and
the
contention raised by the petitioner in this
regard is without basis.

6. The question which thus falls for
consideration is as to whether
the
Superintendent of Police could have
passed
the
order
of
suspension
in
contemplation
of
departmental
proceedings against an officer of the rank
of an Inspector whose appointing authority
is the Deputy Inspector General of Police.

7. In order to appreciate the
controversy involved the provisions of The
Uttar Pradesh Police Officers of the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991 may be adverted to.

8. The aforementioned Rules, 1991
were made by the Governor in exercise of
powers under sub-sections (2) and (3) of
Section 46 read with Sections 2 and 7 of
the Police Act, 1861 (Act No.V of 1861)
and all other powers enabling him in this
behalf and in supersession of all existing
rules issued in this behalf, for regulating
the departmental proceedings, punishment
and appeals and Police Officers of the
subordinate ranks of the Uttar Pradesh
Force.

9. In terms of Section 2 of the Act
No.V of 1861, the Rules, 1991 are
applicable to all the Police Officers of the
2 All. Keshav Prasad Dubey Vs. TheState of U.P. & Ors.
1215
subordinate ranks below the rank of
Deputy Superintendent of Police. Rule
3(a) defines the appointing authority, as
meaning the authority empowered to make
appointments to the post which a Police
Officer for the time being holds. Under
Rule 3(g) the term "Police Officer" is
defined to mean a Police Officer of the
subordinate rank below the rank of Deputy
Superintendent of Police.

10. The power to place under
suspension a Police Officer of the
subordinate rank against whose conduct an
enquiry is contemplated, or is pending, is
provided for under Rule 17 of the Rules,
1991. For ease of reference, Rule 17(1)(a)
referred to above, is being extracted
below:-

"17.
Suspension.--(1)(a)
A
Police Officer against whose conduct an
enquiry is contemplated, or is proceeding,
may be placed under suspension pending
the conclusion of the enquiry in the
discretion of the appointing authority or by
any other authority not below the rank of
Superintendent of Police, authorised by
him in this behalf."

11.

A
plain
reading of
the
aforementioned Rule 17(1)(a) shows that a
Police Officer against whose conduct an
enquiry is contemplated, or is proceeding,
may be placed under suspension pending
conclusion of enquiry in the discretion of
the appointing authority or by any other
authority
not
below
the
rank
of
Superintendent of Police, authorised by
him in this behalf.

12. It therefore follows that the
power to place a Police Officer of a
subordinate rank under suspension in a
case where an enquiry is contemplated, or
is proceeding against his conduct, is to be
exercised by the appointing authority in
his discretion. The Rule further makes a
provision that the aforementioned power
of suspension which is to be exercised by
the appointing authority may also be
exercised by any other authority not below
the rank of Superintendent of Police who
is authorised by the appointing authority in
this behalf.

13. It is thus clear that Rule 17(1)(a),
apart from conferring the power of
suspension, in the case of a Police Officer
of a subordinate rank against whose
conduct an enquiry is contemplated or is
pending, upon the appointing authority,
also empowers the appointing authority to
grant authorisation for exercising the
aforesaid power of suspension by any
other authority not below the rank of
Superintendent of Police.

14. The scope of delegation of a
discretionary
administrative
power
entrusted by a statute came up for
consideration in the case of Barium
Chemicals Ltd. & Anr. Vs. Company
Law Board & Ors.1 and it was held that a
discretion conferred by a statute on any
authority is prima facie intended to be
exercised by the authority on which the
statute has conferred it and by no other
authority, but this intention may be
negatived by any contrary indications
found in the language, scope or object of
the statute. Referring to Crawford on The
Construction
of
Statutes2,
the
observations made in the judgment are as
follows:-

"36. As a general rule, whatever
a person has power to do himself, he may
do by means of an agent. This broad rule is
limited by the operation of the principle
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
that a delegated authority cannot be redelegate, delegatus non potest delegare.
The naming of a delegate to do an act
involving a discretion indicates that the
delegate was selected because of his
peculiar skill and the confidence reposed
in him, and there is a presumption that he
is required to do the act himself and cannot
re-delegate his authority. As a general rule,
"if the statute directs that certain acts shall
be done in a specified manner or by certain
persons, their performance in any other
manner than that specified or by any other
person than one of those name is impliedly
prohibited". See Crawford on statutory
Construction, 1940 Edn., Art. 195, p. 335.
Normally, a discretion entrusted by
Parliament to an administrative organ must
be exercised by that organ itself. If a
statute entrusts an administrative function
involving the exercise of a discretion to a
Board consisting of two or more persons it
is to be presumed that each member of the
Board should exercise his individual
judgment on the matter and all the
members of the Board should act together
and arrive at a joint decision. Prima facie,
the Board must act as a whole and cannot
delegate its function to one of its members.

x x x x x

38. But the maxim "delegatus
non potest delegare" must not be pushed
too far. The maxim does not embody a
rule of law. It indicates a rule of
construction
of
a
statute
or
other
instrument conferring an authority. Prima
facie, a discretion conferred by a statute,
on any authority is intended to be
exercised by that authority, and. by no
other. But the intention may be negatived
by any contrary indications in the
language, scope or object of the statute.
The construction that would best achieve
the purpose and object of the statute
should be adopted."

15. The principle that the maxim
delegatus non potest delegare, may be
subject
to
any
contrary
indications
provided in the language of the statute has
been stated in De Smith's Judicial
Review
of
Administrative
Action3,
wherein referring to the article "Delegatus
non potest delegare" by John Willis4, it
was stated as follows:-

"The
maxim
delegatus
non
potest delegare does not enunciate a rule
that knows no exception; it is a rule of
construction to the effect that "a discretion
conferred by statute is prima facie
intended to be exercised by the authority
on which the statute has conferred it and
by no other authority, but this intention
may be negatived by any contrary
indications found in the language, scope or
object of the statute"."

16. The applicability of the principle
that a discretionary administrative power
should be exercised by the authority upon
whom it is conferred in the present day
administrative set up which has seen an
enormous
rise
in
the
nature
of
administrative activities was considered in
the case of Sahni Silk Mills (P.) Ltd. &
Anr. Vs. Employees' State Insurance
Corporation5 and it was held that
delegation is authorised either expressly or
impliedly in many statutes granting liberty
to a public authority to employ agents to
exercise its powers. It has been stated in
the judgment as follows:-

"5. The courts are normally
rigorous in requiring the power to be
exercised by the persons or the bodies
authorised by the statutes. It is essential
that the delegated power should be
exercised by the authority upon whom it is
conferred and by no one else. At the same
2 All. Keshav Prasad Dubey Vs. TheState of U.P. & Ors.
1217
time, in the present administrative set-up
extreme judicial aversion to delegation
cannot be carried to an extreme. A public
authority is at liberty to employ agents to
exercise its powers. That is why in many
statutes, delegation is authorised either
expressly or impliedly. Due to the
enormous rise in the nature of the
activities to be handled by statutory
authorities, the maxim delegatus non
potest delegare is not being applied
specially when there is question of
exercise of administrative discretionary
power.

6. By now it is almost settled
that the legislature can permit any
statutory authority to delegate its power to
any other authority, of course, after the
policy has been indicated in the statute
itself within the framework of which such
delegatee is to exercise the power..."

17. The aforementioned proposition
that where a statute prescribes a particular
body to exercise a power it must be
exercised by that body alone and no other
unless it is delegated was reiterated in the
judgment in the case of Marathwada
University Vs. Seshrao Balwant Rao
Chavan6 wherein referring to Halsbury's
Laws of England, 4th Edn., Vol.1, para
327, it was stated as follows:-

"20. ...It is a settled principle
that when the Act prescribes a particular
body to exercise a power, it must be
exercised only by that body. It cannot be
exercised by others unless it is delegated.
The law must also provide for such
delegation. Halsbury's Laws of England
(Vol.I, 4th Edn. para 32) summarises these
principles as follows:

"32. Sub-delegation of powers.--
In accordance with the maxim delegatus
non potest delegare, a statutory power
must be exercised only by the body or
officer in whom it has been confided,
unless sub-delegation of the power is
authorised by express words or necessary
implication. There is a strong presumption
against construing a grant of legislative,
judicial or disciplinary power as impliedly
authorising sub-delegation; and the same
may be said of any power to the exercise
of which the designated body should
address its own mind."

18. It is thus an accepted principle of
law that a discretionary power must, in
general, be exercised only by the authority
upon which it has been conferred. The
power having been conferred under a
statutory provision upon an authority to be
exercised upon his individual judgment
and discretion the same must be wielded
only by the said authority upon whom the
power has been conferred and the
discretion should be retained unhampered.

19. An element which is essential to
the lawful exercise of power is that it
should be exercised by the authority upon
whom it is conferred and by no one else.
The requirement of exercise of the power
by the authority upon whom the power is
conferred is, in general, insisted rigorously
by the courts and any action taken by any
agent
or
delegate
would
not
be
permissible.

20.

The
exception
to
the
aforementioned principle of the inalienable
discretion in the exercise of a statutory
power would be in a case where the
authority on whom the power is originally
conferred by a statute is expressly
authorised in terms thereof to delegate the
said power by grant of authorisation to
some other authority. This principle
applies to delegation of all forms of
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
powers, including administrative powers,
conferred in terms of a statutory provision.

21. Delegation of an administrative
power is permissible when the relevant
law permits the same and statutes
frequently make a provision enabling the
authority on which powers are conferred in
the first instance to delegate the same to
subordinate officers.

22. An order of delegate, when
delegation is made as authorised by the
statute, is to be treated for all intents and
purposes as an order of the authority itself.

23. The Rules, 1991 are of a
statutory nature, and as per the provisions
under Rule 17(1)(a) thereof the power to
place under suspension a Police Officer of
a subordinate rank against whose conduct
an enquiry is contemplated, or is pending,
having been conferred on the appointing
authority, in his discretion, the same is
normally to be exercised by the said
authority
itself.
However,
the
Rule
expressly permits the exercise of the
aforementioned power of suspension by
any other authority not below the rank of
Superintendent of Police who has been
authorised by the appointing authority in
this behalf, and in view thereof the
exercise of the power by the authority who
has been granted authorisation by the
appointing authority would also be a valid
exercise of power conferred under the
Rules, 1991.

24. In the instant case the power
of authorisation contemplated under
Rule
17(1)(a)
having
duly
been
exercised by the appointing authority
i.e. the Deputy Inspector General of
Police and the necessary authorisation
having
been
issued
to
the
Superintendent of Police for exercising
the aforesaid power, the order of
suspension which has been passed by
the
Superintendent
of
Police,
Chitrakoot cannot be said to suffer
from want of authority and therefore
cannot be assailed on this ground.

25. Counsel for the petitioner, at
this stage, confines his prayer to a
direction to the respondent authorities
that
the
departmental
proceedings
which are contemplated pursuant to the
order of suspension may be concluded
expeditiously. He further undertakes
that the petitioner would cooperate
with the departmental proceedings.

26. Learned Standing Counsel
appearing for the State-respondents, on
the basis of his instructions, states that
the
departmental
proceedings
in
accordance with the procedure under
Rule 14(1) have already been initiated
and the same would be completed as
per the Rules, 1991.

27. Having regard to the facts of
the case the writ petition is disposed of
with an observation that the respondent
authorities would proceed with the
matter and endeavour to conclude the
departmental
proceedings
expeditiously,
preferably
within
a
period of six months from the date of
presentation of a certified copy of this
order, provided that the petitioner
cooperates with proceedings.
----------
(2020)02ILR A1218

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2020

BEFORE