TMI Blog1973 (12) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Inspector-General to transfer the members of the Force from one railway to another. The Regulations were framed and issued by the Inspector General with the approval of the Central Government in exercise of the power conferred on that behalf by Rule 32 of the Railway Protection Force Rules, 1959. Rule 32 is as under. Powers of Inspector-General to frame regulations,--The Inspector-General may, from time to time, for the proper administration of the Force frame and issue regulations with the approval of the Central Government and superior officers and members of the Force shall, as a condition of their service, be governed by such regulations in the discharge of their duties. Such regulations as are in force on the date of commencement of the Act shall continue to remain in force unless repealed or modified The Rules were made by the Central Government under section 21 of the Railway Protection Force Act, 1957. The relevant clauses of this section read as under: 21. Power to make Rules:--(1) The Central Government may, by notification in the Official Gazette, make Rules, for carrying out the purposes of this Act. (2) In particular and without prejudice to the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Commissioner among other things to make rules for the maintenance of watch and ward, and the establishment of proper system of conservancy and sanitation at fairs and other large public assemblies. The rule made by the Chief Commissioner prohibited the holding of fairs except under a permit issued by the District Magistrate who was to satisfy himself before issuing any permit, that the applicant was in a position to establish a proper system of conservancy, sanitation and watch and ward at the fair. The Supreme Court held that the rule did not itself bring a system of conservancy and sanitation into existence and merely empowered the District Magistrate to evolve his own system and to see that it was observed and as the Chief Commissioner was not authorised to delegate his authority of establishing a system, the rule made by him was ultra vires. The enabling Act, may, however, empower the authority on whom power to make delegated legislation is conferred to further delegate that power to some other authority; Hari Shankar Bagla v. M.P. State AIR 1954 SC 465, p. 469. But there is a strong presumption against construing a grant of legislative power as impliedly authorising s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Force, Further, as the administration of the Force by the Inspector-General is to be carried out in accordance with the provisions of the Act and the rules made thereunder and under the superintendence of the Central Government, it is also implicit that the orders issued by the Inspector-General in the exercise of his power of administration of the Force under section 8 must be consistent with the Act and the Rules and in conformity with the control exercised by the Central Government in the exercise of its power of superintendence. In this background, when Rule 32 authorises the Inspector-General to frame and issue regulations with the approval of the Central Government for the proper administration of the Force, it confers no new power on the Inspector-General but it merely makes express what is implicit in section 8 of the Act. The Rule correctly understood, does not sub-delegate any power of the Central Government of making rules as to the conditions of service; it merely recognises that power of administration of the Force subject to control of the Central Government is vested by section 8 of the Act in the Inspector-General. The condition of service is laid by the rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the Central Government and so long as the Central Government exercises general control over the activities of the State Government whose assistance is taken in the task of integration, it cannot be said that there is any violation of the rule against sub-delegation. In holding so the Court made the following general observations: If, however, the administrative authority named in the statute has and retains in its hands general control over the activities of the person to whom it has entrusted in part the exercise of its statutory power and the control exercised by the administrative authority is of a substantial degree, there is in the eye of law no delegation at all and the maxim delegatus non potest and delegare does not apply See Fourier John and Co. (Leeds) v. Duncan 1941 Ch. 460. In other words, if a statutory authority empowers a delegate to undertake preparatory work and to take an initial decision in matters entrusted to it but retains in its own hands the power to approve or disapprove the decision after it has been taken, the decision will be held to have been validly made if the degree of control maintained by the authority is closed enough for the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes and Mineral (Regulation and Development) Act, 1957, which reads no rules made shall come into force until they have been approved whether with or without modifications by each House of Parliament. The laying clause in section 21(3) of the Railway Protection Force Act with which we are concerned and which we have earlier quoted is of the third variety. Apart from these three broad categories, laying clauses are found in various forms depending upon the degree of control which Parliament desires to keep over the delegated legislation. The Select Committee on Delegated Legislation in 1953 summarised these forms under seven heads; [Delegated Legislation in India, pp. 166 to 169]. A correct construction of any particular laying clause depends upon its own terms. If a laying clause defers the coming into force of the rules until they are laid, the rules do not come into force before laying and the requirement of laying is obligatory to make the rules operative; R. v. Sheer Metalcraft (1954) 1 All ER 542, p. 545 and Metcalfe v. Cox (1895) AC 328 (HL). So the requirement of laying in a laying clause which requires an affirmative procedure will be held to be mandatory for making the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns are merely obiter and cannot prevail against the clear ruling given in Jan Mohd's case. Our conclusion, therefore, is that the laying requirement enacted in section 21(3) of the Act is merely directory. It logically follows that failure to lay Regulation 14 has no effect on its validity and it continues to be effective and operative from the date it was made. The learned counsel for the petitioner referred to us an unreported judgment of the Delhi High Court Gurbaksh Singh v. General Manager, Northern Railway Civil Writ No 872 of 1971, decided on the 10th March 1972 in support of the view that Regulation 14 was invalid for want of laying before Parliament. With great respect, for the reasons already indicated, we are unable to accept the view taken in that case. We will now take up the contention that Regulation 14 is ultra vires the powers conferred on the Inspector-General by Rule 32. The argument in support of this contention is that the rule authorises the Inspector-General to frame and issue regulations only for the proper administration of the Force , and that the subject of transfer which is dealt with by Regulation 14 does not concern the administration of the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power conferred on the Inspector-General by Rule 32. As regards the contention that the transfer of the petitioner from Central Railway to Western Railway will affect his seniority and chances of promotion, we were told by the counsel appearing for the respondents, that the petitioner will get seniority according to his length of service in Western Rail way and that his chances of promotion are not likely to be affected We are, however, of opinion that even if the transfer from one Railway to another affects petitioner's seniority or chances of promotion that cannot invalidate the transfer which is made in exercise of the power conferred by the Act and the rules and regulations made thereunder. The learned counsel for the petitioner lastly drew our attention to the fact that the petitioner also prays in his petition that the Court should direct the respondents to treat the petitioner on duty w. e. f. 4th May 1972 when he reported on duty and for making payment w. e. f. 1st December 1971. The facts bearing upon this relief are not admitted and as the matter relates essentially to claim of salary for the period in question we do not think it proper to investigate the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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