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PETITIONER: YOGENDER PAL SINGH & OTHERS

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT23/01/1987

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)

CITATION:  1987 AIR 1015            1987 SCR  (2)  49  1987 SCC  (1) 631        JT 1987 (1)   227  1987 SCALE  (1)175

ACT:     Punjab Police Rules, 1934, Rule 12.14. (3) constitution- al  validity  of--Authorising  the grant  of  preference  of appointment in favour of sons and near relatives of  persons serving         in        the        police         service, whether--Constitutional--Constitution of India, 1950,  Arti- cles 16(2) and Article 14(1).

HEADNOTE:     Delhi Police (Appointment and Recruitment) Rules,  1980, Whether  supersedes the earlier Punjab Police  Rules,  1934, though  it  is deemed to be in force by  virtue  of  section 149(2) of the Delhi Police Act, 1978--Construction of a  New law.     Delhi Police Act, 1978, sections 147 and 149--Scope  and effect  of,  explained--Rules 30 and 32 of the  1980  Police Rules.     The  Delhi Police Act, 1978 (Act 34/78) which came  into force  with effect from 1.7. 1978 by virtue of  section  149 thereof repealed the earlier Act of 1861. However, the first proviso to section 149(1) provided that all rules and stand- ing  Orders (including the Punjab Police Rules, as in  force in Delhi) made under the Police Act, 1861 would be in so far as  they were consistent with the Act may be deemed to  have been respectively made under the Act. Consequently the  said 1934 Rules continued to be in force even after the commence- ment  of  the Act. By virtue of the authority  vested  under section 147(2)(a) of the 1978 Act, the Lt. Governor of Delhi promulgated  the Delhi Police (Appointment and  Recruitment) Rules,  1980.  The said Rules which came  into  effect  from 31.12.80 were amended twice--in 1983 and 1985. By the  newly added  Rule  32 on 2.5.83, all provisions contained  in  the Punjab Police Rules as applicable to the Union Territory  of Delhi were repealed. While under the earlier Rule  12.14.(3) of  the  Punjab  Police Rules, sons and  near  relatives  of persons  who have done good service in Punjab Police  or  in the  Army had preference in recruitment, under the new  Rule 9(vi)(d)(ii) relaxation of the age limit alone was  provided for  "for  sons  of police personnel who  die  in  service". Despite  this  Rule  position, the  Deputy  Commissioner  of Police  Headquarters (I), Delhi, by his order  dt.3.  10.81,

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relaxed  the rules relating to the qualifications in  favour of the sons or wards of Delhi  50 Policemen  upto the limit of 71/2% of the  total  selection. Accordingly  the police authorities in charge of the  selec- tion of candidates recommended 259 candidates out of a total of  420 candidates who came within the category of wards  of Policemen/Class IV employees to the Delhi Administration for seeking approval of the competent authority.     All the 23 appellants were eligible to be considered for the  appointment as Constables in the light of the order  of relaxation dated 3.10.81, but even they were not sent up for training  which they had to undergo before  the  appointment because six of them were found to be ineligible since  their brothers had already been recruited in the Police Department by relaxing the rules of appointment in their favour. 15  of them were refused permission to join the training course  on the  ground  that the Administrator (Lt. Governor  of  Union territory  of Delhi) had not relaxed the  qualifications  in their  cases. Two of them, however, had in fact  received  a letter  stating that the Administrator (Lt. Governor of  the Union territory of Delhi) had accorded sanction for  relaxa- tion for recruitment in their cases and they could join  the training  course  with effect from 15.6. 1982 but  later  on they  were also denied admission into the Police  force  be- cause their brothers had been recruited earlier in the Delhi Police  service  after according relaxation.  The  order  of relaxation  in their favour had, therefore, been  withdrawn. The  appellants  who were thus aggrieved by  the  denial  of admission  into the service preferred the writ  petition  in the  High  Court for the issue of writ of  mandamus  to  the Delhi  Administration to appoint them as Constables  on  the ground that they satisfied the qualifications prescribed  by the rules read with the order of relaxation dated 3.10.1981.     A  learned Single Judge of the Delhi High Court  allowed the  writ  petition and held that the Punjab  Police  Rules, 1934  continued to remain in force even after the  promulga- tion  of the Rules which came into force on  31.12.1980  and the cases of the appellants were protected by the relaxation order  dated 3.10.1981 issued by the Deputy Commissioner  of Police  and the fact that any of the brothers of the  appel- lants had been appointed earlier under the cover of  similar order  of  relaxation did not disentitle the  appellants  to claim the benefit of the order of relaxation.     Aggrieved  by the said decision, the Union of India  and the Delhi Administration flied a Letters Patent Appeal.  The appeal was allowed holding; (a) that on the promulgation  of the Rules with effect from 31.12.1980, rule 12.14.(3) of the Punjab  Police Rules, 1934 which dealt with the  subject  of appointment  of  Constables stood repealed; (b)  that  under Rule 30 of the Rules the power to relax the Rules in  appro- priate 51 cases having been vested with the Administrator. (Lt. Gover- nor of the Union territory of Delhi) the order of relaxation issued by the Deputy Commissioner of Police on 3.10.1981 did not  give  any  right to the appellants  for  enlistment  as Constables  unless relaxation was granted by  the  competent authority i.e. the Administrator (Lt. Governor of the  Union territory  of Delhi) and the mere fact that a candidate  was successful in the test by itself would not give him a  right to  enlistment; (c) that since by its letter dated April  3, 1982 the Delhi Administration had decided that only one  son of  a police officer would be considered for grant  of  such relaxation  the appellants whose brothers had  already  been

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employed  in the police service on the basis of  an  earlier order  of  relaxation were not entitled to be  recruited  by relaxing  the Rules once again. Hence the appeal by  special leave. Dismissing the appeal, the Court,     HELD:  1.  1 The claim made by the  appellants  for  the relaxation  of  the Rules in their cases only  because  they happen  to  be  the wards or children or  relatives  of  the police officers has got to be negatived since their claim is based on ’descent’ only and others will thereby be discrimi- nated against as they do not happen to be the sons of police officers.  Any  preference  shown in the  matter  of  public employment on the ground of descent only has to be  declared as unconstitutional. [65F-G]     1.2 While it may be permissible to appoint a person  who is the son of a police officer who dies in service or who is incapacitated while rendering service in the Police  Depart- ment,  a  provision which confers a  preferential  right  to appointment  on the children or wards or other relatives  of the  police  officers either in service  or  retired  merely because  they  happen to be the children or wards  or  other relatives  of  such  police officers would  be  contrary  to Article  16  of the Constitution. Opportunity  to  get  into public service should be extended to all the citizens equal- ly and should not be confined to any extent to the  descend- ants or relatives of a person already in the service of  the State or who has retired from the service. [64B-D]     Gazula Dasaratha Rama Rao v. The State of Andhra Pradesh JUDGMENT:     2.1  It is well settled that when a competent  authority makes  a  new  law which is totally  inconsistent  with  the earlier  law  and  that the two cannot  stand  together  any longer  it must be construed that the earlier law  had  been repealed by necessary implication by the later law. Apply- 52 ing the above test it has to be held in this case that  rule 12.14  and rule of the Punjab Police Rules, 1934  stood  re- pealed with effect from December 31, 1980 and rule 32 of the Rules  which  was introduced by way of amendment on  May  2, 1983 had not the effect reviving rule 12.14 and rule 12.. 15 of  the  Punjab Police Rules, 1934 and  Keeping  them  alive beyond December 31, 1980 upto May 2, 1983. [63A-C]     2.2  Rule  32 of the Delhi Police (Appointment  and  Re- cruitment)  Rules, 1980 had been introduced by way of  abun- dant caution, although in fact the Punjab Police Rules, 1934 ceased to be in force on 31. 12. 1980 and the mere  addition of Rule 32 did not have the effect of keeping the 1934 Rules alive after 31.12.80. [62D-E]     2.3  Section  149(2) of the Delhi Police  Act  no  doubt provided that the rules framed under the Police Act of  1861 would continue to be in force after the Act came into  force in  so far as they were consistent with the Act but  at  the same time section 147 of the Act authorised the  Administra- tor  (Lt. Governor of the Union territory of Delhi) to  make rules regarding recruitment to, and the pay, allowances  and all other conditions of service of the members of the  Delhi Police  under  clause (b) of section 5. It is  not  disputed that  rule 12.14 and rule 12.15 of the Punjab Police  Rules, 1934  and the rules promulgated on December 31,  1980  dealt with  the  identical subject, namely,  the  appointment  and recruitment  of  Constables  to the  Delhi  Police  service. Therefore, on the promulgation of the Rules on December  31, 1980 which covered the subject dealt with by rule 12.14  and rule  12.15 of the Punjab Police Rules, 1934 had the  effect of  repealing by necessary implication rule 1,2.14 and  rule

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12.15 of the Punjab Police Rules, 1934 even though initially there  was no express provision in the Rules to  the  effect that  rule 12.14 and rule 12.15 of the Punjab Police  Rules, 1934  stood  repealed with effect from  December  31,  1980. [62D-H;63A]     2.4 The appellants cannot rely upon rule 12.14(3) of the Punjab Police Rules, 1934 which provided that "sons and near relatives of person who have done good service in the Punjab Police  or in the Army shall, subject to  the  consideration imposed by rule 12.12 have preference over the other  candi- dates for police employment". Under rule 30 of the Rules any relaxation should be made by the Administrator (Lt. Governor of  the  Union  territory of Delhi) and not  by  the  Deputy Commissioner  of Police. Thus no reliance can be  placed  on the order of relaxation passed by the Deputy Commissioner of Police  on 3.10.1981 and since by the letter dated April  3, 1982  the  Delhi Administration had  imposed  an  additional condition in respect of the wards of Delhi 53 Policemen/Class  IV  employees that only one son  of  police personnel/ Class IV employee would be considered for gram of such  relaxation the appellants cannot claim that they  were entitled  to be recruited because admittedly their  brothers had  already been recruited in the Delhi Police  service  on the basis of an earlier order of relaxation. [63C-F]

&     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2547  of 1985.     From the Judgment and Order dated 15.5.1984 of the Delhi High Court in L.P.A. No. 157 of 1983 S.A.K. Dar and P.D. Sharma for the Appellants.     Anand  Prakash,  N.D. Garg, Miss Sushma  Relan  for  the Respondents. The Judgment of the Court was delivered by     VENKATARAMIAH,  J.  The above appeal  by  special  leave arises out of a writ petition filed by the appellants in the High  Court  of Delhi for the issue of a  direction  to  the Delhi Administration to appoint them as police Constables.     Prior to the coming into force of the Delhi Police  Act, 1978  (Act No. 34 of 1978) (hereinafter referred to as  ’the Act’) with effect from the 1st day of July, 1978, there  was in  force  in the Union territory of Delhi the  Police  Act, 1861. On the commencement of the Act, the Police Act, 186  1 ceased  to be in force in Delhi by virtue of section 149  of the  Act.  The first proviso to section 149(1) of  the  Act, however,  provided that all rules and standing  orders  (in- cluding the Punjab Police Rules, as in force in Delhi)  made under  the Police Act, 1861 would be in solar as  they  were consistent with the Act be deemed to have been  respectively made  under  the Act. Accordingly the Punjab  Police  Rules, 1934  as in force in Delhi which had been enacted under  the Police  Act,  1861 continued to be in force even  after  the commencement  of  the Act. Chapter 12 of the  Punjab  Police Rules, 1934 contained the rules relating to the appointments and  enrolments  of  Assistant  Superintendents  of  Police, Deputy  Superintendents  of Police,  Inspectors,  Sergeants, Assistant  Sub-Inspectors, Range Auditors,  Head  Constables and  Constables. Recruitment to the cadre of Constables  was done under rules 12.12 to 12.22 of the Punjab Police  Rules, 1934.  Rules  12.14 and 12.15 dealt with the status  of  the recruits, 54

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the  qualifications, age and the physicial  standards  which the  recruits had to satisfy. Rules 12.14 and 12.15  of  the Punjab Police Rules, 1934 read as follows: "12.14.  Recruits--Status of. (1) Recruits shall be of  good character and great care shall be taken in selecting men  of a type suitable for police service from candidates  present- ing themselves for enrolment.          (2)  The  enlistment in the police  of  Gurkhas  of Nepalese nationality is absolutely forbidden. The enlistment of Gurkhas, who can prove British nationality or  continuous domicile, is permitted, but only with the formal sanction of the  Deputy  Inspector-General. Before giving  sanction  the Deputy  Inspector-General should verify the  nationality  of the proposed recruit by a reference to the recruiting  Offi- cer for Gurkhas.          (3)  Sons  and near relatives of persons  who  have done good service in the Punjab Police or in the Army shall, subject  to  the consideration imposed by  rule  12.12  have preference over the other candidates for police employment.          12.15. Recruits--age and physical standards of. (1) Recruits shall be not more than 25, or less than 18 years of age,  at  the time of enrolment, and shall  have  a  minimum height  of 5’-7" and normal chest measurement of  33",  with expansion of 11/2 inches. These,physical standards shall not be  relaxed without the general or special sanction  of  the Deputy Inspector-General. A general reduction of the  stand- ard may be allowed by Deputy Inspectors-General in the  case of  special castes or classes, which provide  desirable  re- cruits,  but whose general height does not come up  to  that prescribed.  In such cases a standard of  chest  measurement and  general physique shall be fixed, which will permit  the enlistment  of  strong and well-proportioned youths  of  the class in question.          (2) The greatest care shall be taken to ensure that the age of every police officer is correctly recorded at the time of his enrolment and appointment. The record then  made becomes of utmost importance when the question arises of 55 an  officer’s fight to pension, and is accepted as  decisive in  the absence of full proof both that the  original  entry was  wrong and that the date of birth originally  given  was due to a bona fide mistake.          A  copy  of this rule shall be  pasted  inside  the cover of the recruit register (form 12.13) and the attention of the Civil Surgeon shall be drawn to it." Section  147  of the Act authorises the  Administrator  (Lt. Governor of the Union territory of Delhi) to make rules  for carrying out the purposes of the Act. Clause (a) of  section 147  (2)  of the Act expressly states that  such  rules  may provide for recruitment to, and the pay, allowances and  all other  conditions  of service of the members of,  the  Delhi police  under  clause (b) of section 5. In exercise  of  the said  power  the Administrator (Lt. Governor  of  the  Union territory  of Delhi) promulgated the Delhi Police  (Appoint- ment  and Recruitment) Rules, 1980 (hereinafter referred  to as  "the Rules") providing for the appointments  of  Inspec- tors, Sub-Inspectors, Assistant Sub-Inspectors, Head Consta- bles  and  Constables.  Rule 9 of the Rules  laid  down  the procedure  for the recruitment of the Constables.  The  said rule, as it was originally promulgated, read as follows: "9.  Recruitment of Constables.--Delhi being a  cosmopolitan city, it is imperative to attract candidates from all  parts of the country.           (ii)  The recruitment of constables shall be  done twice a year in the months of January and July by the  Board

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to be nominated by Commissioner of Police as per rule 8.           (iii)  The Commissioner of Police may  also  order special  recruitment  at any time if  there  are  sufficient number  of  vacancies and the panels prepared  earlier  have exhausted.           (iv) A panel shall be drawn up of selected  candi- dates  on the basis of existing and  anticipated  vacancies. This panel shall be valid till the next recruitment is held.           (v) Physical, educational, age and other standards for  recruitment  to  the rank of  constables  shall  be  as under:- 56 (a) Age      18-21 years    Relaxable by 5 years for                            (i)   Scheduled   Caste/Scheduled                               Tribes candidates                             (ii) Sportsmen of distinction.                             (iii) Ex-servicemens per rule 28                                   of these rules.     (b) Height   170 Centi-    Relaxable by 4 centimeters                  meters        for residents of Hill area                                e.g. Gurkhas, Garwalis.     (c) Chest      170 Centi-     Relaxable by 2 centimeters                       meters         for residents  of  hill                                      areas.     (d) Educa-   Matric/       Relaxable up to 9th pass       tional     Higher        only for:-       Qualifi-   Secondary     (i) Bandsmen, buglers,       cation     10th of       mounted Constables, drivers,                  10 plus 2     despatch riders etc.                                 (ii)  for  sons  of   police                                personnel who die in service.  (e)Physical   Sound state     No relaxation permissible.   standard    of health, free               from defect/               deformity/               disease, vision               6/12 without               glasses both               eyes, free               from colour               blindness.   (f) Reserva-                 (i) For Scheduled Castes,       tion of                  Scheduled Tribes, Ex-service-       vacancies                men etc. as per orders issued                                by  Government from time                                  to time.                                (ii) For sons of police                                    personnel not more than 5                                    % of vacancies. 57          (vi) The Commissioner of Police shall frame  stand- ing orders prescribing application forms and detailed proce- dure  to  be followed for  conducting  physical  efficiency, physical measurement, written tests and viva-voce for  regu- lating the above mentioned recruitment.     The Rules were amended by the Administrator (Lt.  Gover- nor  of the Union territory of Delhi on May 2, 1983 and  one of the amendments made on that occasion was the addition  of rule  32 to the Rules. The new rule 32 of the Rules read  as follows: "All  provisions  contained in the Punjab  Police  Rules  as applicable  to  the Union territory of  Delhi,  relating  to appointments  and  recruitment of employees are  hereby  re- pealed, subject to the provisions as contained in the provi- sos  to sub-section (1) and (2) of section 149 of the  Delhi

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Police Act, 1978."     The  Rules were again amended in 1985. On that  occasion rule  9 of the Rules which provided for the  recruitment  of the  Constables  was amended but we are not  concerned  with these  amendments  made in the year 1985 since we  are  con- cerned in this case with the rules which were in force prior to  the above said amendment. Rule 30 of the Rules which  is relevant for purposes of this case reads as follows:           "30 Power to relax.--When the Administrator is  of the  opinion that it is necessary or expedient so to do,  he may, by order, for reasons to be recorded in writing,  relax any  of  the provisions of these Rules with respect  to  any class,  category,  or persons or posts or in  an  individual case."     As stated at the commencement, this appeal arises out of the  writ petition bearing no. C.W .P. No. 1891 of  1982  on the file of the High Court of Delhi filed under Article  226 of the Constitution. The said writ petition was filed by  23 petitioners, who were applicants for the posts of Constables in  the Delhi Police Force governed by the Act. They  prayed for  the  issue  of a writ to the  Delhi  Administration  to appoint  them  as  Constables and  for  other  consequential reliefs. None of them was fully qualified to be recruited as a  Constable  under the Rules. But being the sons  of  Delhi policemen, they depended upon an order date 3.10.1981 passed by the Deputy Commissioner of Police Headquarters (I)  Delhi under which he had relaxed the rules relating 58 to  the  qualifications in favour of the sons  or  wards  of Delhi  policemen. The relevant part of the said order  dated 3.10.1981 reads thus:           "The wards of Delhi policemen should be given  the following concessions in age, educational qualifications and physical  standards, etc., for recruitment as Constables  in Delhi Police:-     1.   Age                    Upto 25 years     2.   Educational            9th Pass          Qualifications     3.   Height                -5’-5"     4.   Chest                 --2" Relaxation.           All  those  wards of Delhi  Police  Personnel  who conform  to  the qualifications laid down above  should  be’ allowed  to appear in the physical and written tests.  Their forms  should  be accepted as it was being done  before  the introduction of New Rules.           The  last  date  for acceptance of  forms  may  be enhanced  from  3rd  Oct., 1981 to 15th  October,  1981  and forms should be sold during holidays also.                                sd/-A.K.   Aggarwal Deputy Commissioner of Police, HQ (1) Delhi No. 19512-45/SIP dated Delhi, the-3-10-81."     The  appellants were eligible to be considered  for  the appointment  as  Constables  in the light of  the  order  of relaxation  referred  to above but even then they  were  not sent  up for training which they had to undergo  before  the appointment because six of them were found to be  ineligible since  their  brothers  had already been  recruited  in  the Police  Department by relaxing the rules of  appointment  in their favour. 15 of them were refused permission to join the training  course on the ground that the  Administrator  (Lt. Governor  of Union territory of Delhi) had not  relaxed  the qualifications in their cases. Two of them, however, had  in fact  received a letter stating that the Administrator  (Lt. Governor  of  the  Union territory of  Delhi)  had  accorded sanction  for relaxation for recruitment in their cases  and

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they  could  join  the  training  course  with  effect  from 15.6.1982 but later on they 59 were  also  denied admission into the Police  force  because their  brothers had been recruited earlier the Delhi  Police service after according relaxation. The order of  relaxation in  their favour had, therefore, been withdrawn. The  appel- lants  who  were thus aggrieved by the denial  of  admission into the service preferred the above mentioned writ petition in  the High Court for the issue of writ of mandamus to  the Delhi  Administration to appoint them as Constables  on  the ground that they satisfied the qualifications prescribed  by the rules read with the order of relaxation dated  3.10.1981 referred to above.     The  petition was resisted by the Delhi  Administration. It was contended on behalf of the Delhi Administration  that the  order of relaxation which had been passed on  3.10.1981 was  not a valid one because (i) it had been passed  on  the assumption  that rule 12.14(3) of the Punjab  Police  Rules, 1934 was in force on the date on which it was passed but  in fact  the said rule stood repealed on the coming into  force of  the Rules on 31.12.1980 framed under section 147 of  the Act and (ii) under rule 30 of the Rules relaxation of quali- fications could be made by the Administrator (Lt.  Governor) not by the Deputy Commissioner of Police. The Delhi Adminis- tration further alleged that Standing Order No. 2 12 of  198 1  had  been issued in connection with  the  recruitment  of Constables in Delhi Police and clause 10 of the said  Stand- ing Order No. 212 read as follows: "10. RELAXATION: (i)  No relaxation in qualifications/standards mentioned  in this  Standing Order shall be given except in the cases  and manner  as  laid down in the Delhi Police  (Appointment  and Recruitment) Rules, 1980. (iii) Children of Police officers of subordinate rank  serv- ing  or those who die in office will be granted 5  marks  in the  written  test as bonus. Relaxation in  other  standards will  not be given excepting with the sanction of  competent authority. ’ ’     Standing  Order  No. 212 of 1981 referred to  above  was further amended as follows: "The wards of the Delhi Policemen will, however, be given 60 the following concessions in age, educational qualifications and physical standards, to enable them to take the  physical and written tests:-     (1) Age                     Upto 25 years     (2)  Educational          9th Pass     Qualification     (3) Height                  5’-5"     (4)  Chest              2 inches                             relaxation           However,  their enlistment would be done  only  in case of relaxation being granted by the competent  authority and  mere  fact that a candidate has qualified in  the  test will not in itself give him a right to enlistment."     The  Delhi  Administration,  however,  agreed  to  grant relaxation to the wards of Delhi Policemen/Class IV  employ- ees  only  upto the limit of 71/2% of the  total  selection. Accordingly  the Police authorities in charge of the  selec- tion  of candidates recommended cases of 259 candidates  out of a total of 420 candidates who came within the category of wards  of Policemen/Class IV employees (within the limit  of 71/2  % of the total selection) to the Delhi  Administration for seeking approval of the competent authority on the basis

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of the following criteria:           "(i)  Only  one son of police  personnel/class  IV employee to be considered for grant of such relaxation.           (ii)  First  preference to be given  to  wards  of deceased,  retired and incapacitated policemen and class  IV employees.           (iii) Selection of the remaining candidates to  be done,  in  order of merit in the tests  within  the  maximum permissible limit of 7 11/2% provided that they do not  need relaxation in more than two standards.           (iv) With regard to Scheduled Castes and Scheduled Tribes candidates who are the wards of Delhi Police  person- nel,  the  lowering of the limit  of  qualifying  percentage would also be applicable in addition. 61     The  aforesaid recommendations having been  accepted  by the  competent authority the police authorities allowed  the candidates  whose cases were covered by the  above  criteria and  the  fixed percentage of 71/2% of such  appointment  to join  the training course. Since the case of the  appellants were not covered by the above criteria they were treated  as being not eligible to be appointed as Constables.     After  hearing the learned counsel for both the  parties the learned Single Judge who heard the writ petition allowed it  by  his judgment dated July 21, 1983. He held  that  the Punjab Police Rules, 1934 continued to remain in force  even after the promulgation of the Rules which came into force on 31.12.  1980 and the cases of the appellants were  protected by the relaxation order dated 3.10.1981 issued by the Deputy Commissioner of Police and the fact that any of the brothers of the appellants had been appointed earlier under the cover of similar order of relaxation did not disentitle the appel- lants  to claim the benefit of the order of relaxation.  The learned  Judge was, therefore, of the view that  the  appel- lants were entitled to be appointed as Constables. Since two of  the appellants had already been sent for training  under the  two  letters of relaxation issued in their  favour  the learned Judge issued a writ directing the Delhi  Administra- tion  to send the remaining 21 candidates also for  training and  to appoint them as Constables after the  completion  of their training.     Aggrieved  by the decision of the learned  Single  Judge the  Union  of India and the Delhi Administration  filed  an appeal  before the Division Bench of the High Court in  Let- ters Patent Appeal No. 157 of 1983. The Division Bench  held that  on  the  promulgation of the Rules  with  effect  from 31.12.1980,  rule 12.14(3) of the Punjab Police Rules,  1934 which  dealt with the subject of appointment  of  Constables stood  repealed. It further held that under rule 30  of  the Rules  the  power to relax the Rules  in  appropriate  cases having  been vested with the Administrator (Lt. Governor  of the Union territory of Delhi) the order of relaxation issued by  the Deputy Commissioner of Police on 3.10.1981  did  not give  any right to the appellants for enlishment as  Consta- bles unless relaxation was granted by the competent authori- ty i.e. the Administrator (Lt. Governor of the Union  terri- tory  of Delhi) and the mere fact that a candidate was  suc- cessful in the test by itself would not give him a right  to enlistment. The Court further held that since by its  letter dated  April  3, 1982 the Delhi Administration  had  decided that  only one son of a police officer would  be  considered for  grant of such relaxation the appellants whose  brothers had already been employed in the police service on the basis of an earlier order of 62

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relaxation were not entitled to be recruited by relaxing the Rules  once again. Accordingly the judgment of  the  learned Single  Judge  was set aside by the Division Bench  and  the writ  petition  filed by the petitioners  therein  was  dis- missed.     Aggrieved  by  the decision of the  Division  Bench  the appellants filed this appeal by special leave.     The  first  point  which requires to  be  considered  is whether  the  Punjab Police Rules, 1934 in so  far  as  they related  to  the recruitment to the post of  Constables  was concerned were in force after the promulgation of the  Rules on 31.12.1980. It is urged on behalf of the appellants  that since rule 32 which provided that "all provisions  contained in the Punjab Police Rules as applicable to the Union terri- tory of Delhi, relating to the appointments and  recruitment of employees are hereby repealed, subject to the  provisions as contained in the provisos to sub-sections (1) and (2)  of section  149 of the Delhi Police Act, 1978" had been  intro- duced by an amendment of the Rules on May 2, 1983 it must be presumed  that  the Punjab Police Rules, 1934 in so  far  as they  related to the recruitment and appointment of  Consta- bles  remained in force till May 2, 1983. The contention  of the  Delhi  Administration is that the said  rule  had  been introduced  by way of abundant caution although in fact  the Punjab  Police  Rules,  1934 had ceased to be  in  force  on 31.12.1980 and the mere addition of rule 32 did not have the effect  of  keeping the relevant Punjab Police  Rules,  1934 alive  after December 31, 1980. We are of the view that  the Division  Bench  was right in accepting the  plea  urged  on behalf  of the Delhi Administration in this regard.  Section 149(2)  of the Act no doubt provided that the  rules  framed under  the Police Act of 1861 would continue to be in  force after  the Act came into force in so far as they  were  con- sistent with the Act but at the same time section 147 of the Act authorised the Administrator (Lt. Governor of the  Union territory of Delhi) to make rules regarding recruitment  to, and the pay, allowances and all other conditions of  service of  the  members  of the Delhi Police under  clause  (b)  of section 5. It is not disputed that rule 12.14 and rule 12.15 of  the Punjab Police Rules, 1934 and the rules  promulgated on December 31,1980 dealt with the identical subject,  name- ly,  the  appointment and recruitment of Constables  to  the Delhi police service. Therefore, on the promulgation of  the Rules  on December 31, 1980 which covered the subject  dealt with  by  rule  12.14 and rule 12.15 of  the  Punjab  Police Rules, 1934 had the effect of repealing by necessary  impli- cation rule 12.14 and rule 12.15 of the Punjab Police Rules, 1934 even though initially there was no express 63 provision  in  the Rules to the effect that rule  12.14  and rule  12.15 of the Punjab Police Rules, 1934 stood  repealed with effect from December 31, 1980. It is well-settled  that when a competent authority makes a new law which is  totally inconsistent  with the earlier law and that the  two  cannot stand  together  any longer it must be  construed  that  the earlier  law had been repealed by necessary  implication  by the later law. Applying the above test it has to be held  in this  case  that  rule 12.14 and rule 12.15  of  the  Punjab Police Rules, 1934 stood repealed with effect from  December 31,  1980 and rule 32 of the Rules which was  introduced  by way of amendment on May 2, 1983 had not the effect  reviving rule  12.14 and rule 12.15 of the Punjab Police Rules,  1934 and keeping them alive beyond December 31, 1980 upto May  2, 1983.  When once this conclusion is reached it follows  that the appellants cannot rely upon rule 12.14(3) of the  Punjab

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Police Rules, 1934 which provided that "sons and near  rela- tives  of  person who have done good service in  the  Punjab Police  or in the Army shall, subject to  the  consideration imposed by rule 12.12 have preference over the other  candi- dates for police employment". Under rule 30 of the Rules any relaxation should be made by the Administrator (Lt. Governor of  the  Union  territory of Delhi) and not  by  the  Deputy Commissioner  of Police. Thus no reliance can be  placed  on the order of relaxation passed by the Deputy Commissioner of Police  on 3.10.1981 and since by the letter dated April  3, 1982  the  Delhi Administration had  imposed  an  additional condition  in respect of the wards of Delhi  Policemen/Class IV employees that only one son of police personnel/Class  IV employees  would be considered for grant of such  relaxation the  appellants cannot claim that they were entitled  to  be recruited because admittedly their brothers had already been recruited  in  the Delhi Police service on the basis  of  an earlier order of relaxation. The appellants have not, there- fore, made out any case in support of their plea.     We should, however, point out at this stage a  fundamen- tal defect in the claim of the appellants, namely, that rule 12.14(3)  of the Punjab Police Rules, 1934 which  authorised the granting of preference in favour of sons and near  rela- tives of persons serving in the police service became uncon- stitutional  on the coming into force of  the  Constitution. Clauses (1) and (2) of Article 16 of the Constitution  which are material for this case read thus:-           "16.  (1) There shall be equality  of  opportunity for  all citizens in matters relating to employment  or  ap- pointment to any office under the State. 64          (2) No citizen shall, on grounds only of  religion, race  caste, sex, descent, place of birth, residence or  any of  them,  be ineligible. for, or discriminated  against  in respect of, any employment or office under the State."     While  it may be permissible to appoint a person who  is the  son of a police officer who dies in service or  who  is incapacitated while rendering service in the Police  Depart- ment,  a  provision which confers a  preferential  fight  to appointment  on the children or wards or other relatives  of the  police  officers either in service  or  retired  merely because  they happen to be children or wards or other  rela- tives  of such police officers would be contrary to  Article 16  of  the  Constitution. Opportunity to  get  into  public service  should be extended to all the citizens equally  and should  not be confined to any extent to the descendants  or relatives of a person already in the service of the State or who  has retired from the service. In Gazula Dasaratha  Rama Rao  v. The State of Andhra Pradesh & Others, [1961]  2  SCR 931 the question relating to the constitutional validity  of section 6(1) of the Madras Hereditary Village--Offices  Act, 1895  (3  of  1895) came up for  consideration  before  this Court. That section provided that where two or more villages or portions thereof were grouped together or amalgamated  so as  to  form a single new village or where any  village  was divided  into two or more villages all the village  officers of the class defined in section 3, clause (1) of that Act in the villages or portions of the villages or village  amalga- mated  or divided as aforesaid would cease to exist and  the new  offices which were created for the new village or  vil- lages should be filled up by the Collector by selecting  the persons  whom  he considered best qualified from  among  the families  of the last holders of the offices which had  been abolished.  This  Court held that the said  provision  which required  the Collector to fill up the said new  offices  by

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selecting persons from among the families of the last  hold- ers of the offices was opposed to Article 16 of the  Consti- tution. The Court observed in that connection at pages  940- 941 and 946-947 thus: "Article  14  enshrines the fundamental  fight  of  equality before  the law or the equal protection of the  laws  within the territory of India. It is available to all, irrespective of  whether  the  person claiming it is a  citizen  or  not. Article   15  prohibits  discrimination  on   some   special grounds--religion,  race, caste, sex, place of birth or  any of  them. It is available to citizens only, but is  not  re- stricted to any employment or office under the State.  Arti- cle  16 cl. (1), guarantees equality of opportunity for  all citizens in matters 65 relating  to employment or appointment to any  office  under the  State; and cl. (2) prohibits discrimination on  certain grounds in respect of any such employment or appointment. It would thus appear that Art. 14 guarantees the general  right of equality; Arts. 15 and 16 are instances of the same right in  favour of citizens in some special circumstances.  Arti- cles  15  is  more general than Art. 16,  the  latter  being confined to matters relating to employment or appointment to any  office under the State. It is also worthy of note  that Art. 15 does not mention ’descent’ as one of the  prohibited grounds  of discrimination, whareas Art. 16 does. We do  not see  any reason why the full ambit of the fundamental  right guaranteed  by  Art. 16 in the matter of employment  or  ap- pointment  to any office under the State should be cut  down by a reference to the provisions in Part XIV of the  Consti- tution  which  relate to Services or to  provisions  in  the earlier    Constitution   Acts   relating   to   the    same subject  .............................................  ..............................  ,.. (Pages 940--941).          There  can be no doubt that s.6(1) of the Act  does embody  a principle of discrimination on the ground  of  de- scent only. It says that in choosing the person to fill  the new offices, the Collector shall select the persons whom  he may  consider the best qualified from among the families  of the  last holders of the offices which have been  abolished. This,  in  our opinion, is discrimination on the  ground  of descent  only and is in contravention of Art. 16(2)  of  the Constitution." (Pages 946--947).     We are of opinion that the claim made by the  appellants for the relaxation of the Rules in their cases only  because they happen to be the wards or children or relatives of  the police officers has got to be negatived since their claim is based on ’descent’ only, and others will thereby be discrim- inated  against  as  they do not happen to be  the  sons  of police  officers.  Any  preference shown in  the  matter  of public  employment on the grounds of descent only has to  be declared as unconstitutional. The appellants have not  shown that they were otherwise eligible to be recruited as Consta- bles in the absence of the order of relaxation on which they relied. Hence they cannot succeed. 66     We, however, make it clear that this judgment shall  not affect the appointments of sons or wards of police  officers already  made  by relaxing the Rules and they  shall  remain undisturbed.     In  the  result the appeal fails and  it  is  dismissed. There shall, however, be no order as to costs. S.R.                                           Appeal   dis- missed. 67

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