Moti Ram Deka Vs. General Manager, N.E.F. Railways [1963] INSC 239 (5 December 1963)
05/12/1963 GAJENDRAGADKAR, P.B.
GAJENDRAGADKAR, P.B.
SUBBARAO, K.
WANCHOO, K.N.
HIDAYATULLAH, M.
GUPTA, K.C. DAS SHAH, J.C.
AYYANGAR, N. RAJAGOPALA
CITATION: 1964 AIR 600 1964 SCR (5) 683
CITATOR INFO:
R 1964 SC1585 (5,7,10,11,12) R 1965 SC 280 (5) D 1965 SC1567 (5) F 1966 SC1607 (32) D 1967 SC1260 (10,11) R 1970 SC 143 (6) RF 1970 SC1314 (15,16) RF 1971 SC1516 (7) R 1971 SC1547 (5) RF 1972 SC 908 (9) E 1973 SC2641 (15,22,24,25,TO 34) R 1974 SC2192 (46,49,52,53) MV 1975 SC1331 (171) R 1975 SC2299 (485) R 1980 SC1382 (81) D 1982 SC1107 (24,26,30,31) D 1982 SC1126 (8) D 1985 SC 551 (29,33) F 1985 SC 722 (4) E&R 1985 SC1416 (43,50,57,58,106,107) RF 1986 SC 555 (6) F 1987 SC2135 (7) RF 1989 SC 662 (8) D 1989 SC1843 (17) R 1991 SC 101 (8,21,32,33,39,41,43,48,56,57, RF 1992 SC 165 (18)
ACT:
Civil Service-Termination of services of a permanent servant-Validity of Rules 148(3) and 149(3) of the Railway Establishment Code vis-a-vis Art. 311(2)-If Rules violate Art. 14-Scope of exercise of Pleasure of President-Basis of superannuation-Rule compulsory retirement when can be applied-Constitution of India, 1950, Arts. 14, 310, 311(2)Indian Railway Establishment Code, Vol 1, Rules 148(3), 149(3).
HEADNOTE:
Moti Ram Deka was a peon employed by the North East Frontier Railway and Sudhir Kumar Das was a confirmed clerk. General Manager, North East Frontier Railway, terminated the services under R. 148(3) of Indian Railway Establishment Co Vol. 1.
They challenged the termination of their services but the writ petitions were rejected by the Assam High Court and t came to this court by special leave.
Priya Gupta was an Assistant Electrical Foreman in North Eastern Railway. His services were terminated under R. 148.
His writ petition and Letters Patent Appeal challenging termination of his services having been rejected by Allahabad High Court, he came to this Court by special leave.
Tirath Ram Lakhanpal was a Guard employed by the Northen Railway. His services were terminated under R. 148. His writ petition and Letters Patent Appeal were dismissed by Punjab High Court and he came to this court by special leave.
S.B. Tewari, Parimal Gupta and Prem Chand Thakur employed in the. North Eastern Frontier Railway. Their service were terminated under R. 149. Their writ petitions challenging termination of their services were accepted by the Assam High Court and Union of India came to this Court after getting a certificate of fitness from the Assam High Court.
The only question involved was the constitutional validity or otherwise of Rules 148(3) and 149(3) of the Indian Railway Establishment Code on the ground that they violated Arts. 14 and 311(2) of Constitution of India.
Held: By majority by Gajendragadkar, Wanchoo, Hidayatullah, Ayyangar, Subba Rao and Das Gupta JJ.(Shah J. dissenting) 684 that Rules 148(3) and 149(3) of Indian Railway Establishment Code were invalid.
Per Gajendragadkar, Wanchoo, Hidayatullah and Ayyangar, jj.
Rules 148(3) and 149(3) are invalid inasmuch as they are inconsistent with the provisions of Arts. 311(2). The termination of the services of a permanent servant which is authorised by those rules, is no more and no less than his removal from service and hence Art. 311(2) must come into play in respect of such cases. The rule which does not require compliance with the procedure prescribed under Art.
311(2) must be struck down as invalid.
A person who substantively holds a permanent post has a right to continue in service, subject to the rules of superannuation and compulsory retirement. If for any other reason that right is invaded and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service and as such it is in the nature of a penalty and amounts to removal. In other words, termination of the services of a permanent servant otherwise than on ground of superannuation or compulsory retirement, must per se amount to his removal and if by R. 148(3) or R. 149(3), such a termination is brought about, the rule clearly contravenes Art. 311(2) and must be held to be invalid.
Rules 148(3) and 149(3) contravene Art. 14 of the Constitution. It is difficult to understand on what ground employment by the Railways alone can be said to constitute a class by itself for the purposes of framing the impugned rules. If considerations of administrative efficiency or exigencies of service justify the making of such a rule, such rules should have been framed in other departments also.
The pleasure of the President has lost some of its majesty and power as it is controlled by the provisions of Art. 311.
Rules of superannuation are based on considerations of life expectation, mental capacity of civil servants having regard to climatic conditions under which they work and the nature of the work they do. They are not fixed on any ad hoc basis and do not involve the exercise of any discretion. They apply uniformly to all public servants falling under the category in respect of which they are framed. There can be no analogy between the rule of superannuation and rules 148(3) and 149(3) of the Code.
If any rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that rule would be invalid and the so-called retirement ordered under the said rule would amount to removal of the civil servant within the meaning of Art. 311(2).
685 Where a rule is alleged to violate the constitutional guarantee afforded by Art. 311(2), the argument of contract between the parties and its binding character is wholly inappropriate.
Per Subba Rao, J.-Rules 148(3) and 149(3) which confer a power on the appointing authority to remove a permanent servant on notice, infringe the constitutional protection guaranteed a Government servant under Arts. 14 and 311 of the Constitution A permanent post and rules such as 148(3) and 149(3) cannot stand together and the latter must inevitably yield to the former.
It is neither the phraseology nor the nomenclature given to the act of termination of service that is material but the legal effect of the action taken that is decisive in considering the question whether a Government servant is dismissed or not. Whether the services of a permanent Government servant are terminated by giving him 15 day's notice or whether his services are dispensed with before the age of superannuation by way of compulsory retirement under or outside a rule of compulsory retirement, the termination deprives him of his title to the permanent post. If in the former case it amounts to dismissal in the latter case, it must be equally so. In both cases, Art. 311(2) is attracted.
Compulsory retirement before age of superannuation is not an incident of tenure. It does not work automatically. It is not conceived in the interest of the employee. It is a mode of terminating his employment at the discretion of the appointing authority. As a matter of fact, whatever the language used in that connection, it is a punishment imposed on him. It not only destroys his title but also inevitably carries with it a stigma and hence such a termination is dismissal or removal within the meaning of Art. 311.
A title to an office must be distinguished from the mode of its termination. If a person has title to an office, he will continued to have it till he is dismissed or removed from there. Terms of statutory rules may provide for conferment of a title to an office and also for the mode of protecting it. If under such rules, a person acquires title to an office, whatever mode of termination is prescribed and whatever phraseology is used to describe it, the termination is neither more nor less than a dismissal or removal from service and that inevitably attracts the provisions of Art.
311 of the Constitution. The argument that the mode of termination prescribed derogates from the title that otherwise would have been conferred on the employee mixes up two clear concepts of conferment of title and the mode of its deprivation. Article 311 is a constitutional protection given to Government servants, who have title to office against their arbitrary and summary dismissal. Government cannot by rule evade the provisions of Art. 311. Parties also cannot contract themselves-out of the constitutional provision Per Das Gupta, J. Rule 148(3) does not contravene Art 311(2). A railway servant to whom R. 148(3) applied has two 686 limitations put on his right to continue in service, viz., termination on attaining a certain age and termination of service on a notice under R. 148(3). Where service is terminated by order of retirement under R. 2046, the termination is of a service where the servant has no right to continue and it is not removal or dismissal. Likewise when service is terminated by notice under R. 148(3) that termination is not removal or dismissal.
The words 'removal' and 'dismissal' in Art. 311 mean and include only those terminations of service where a servant has acquired a right to continue in the post on the basis of terms and conditions of service and such other terminations where though there is no such right, the order has resulted in loss of accrued benefits. Terminations of service which do not satisfy either of these two tests do not come within any of these words.
Both Arts. 309 and 310 are subject to Art. 311. If any rule is made under Art. 309 as regards conditions of service of a Government servant in the matter of his dismissal or removal or reduction in rank, it has to comply with the requirements of Art. 31 1. Before an order dismissing or removing or reducing a Government servant in rank is made by President or Governor in exercise of his pleasure, President or Governor has to comply with the requirements of 311(2).
Under Art 310, all servants of the State hold office during the pleasure of the President or Governor as the case may be. That means that the officer has no right to be heard before his services are terminated. Article 311 provides an exception in the case of removal or dismissal.
However, R. 148(3) contravenes Art. 14 as it does not give any guidance for exercise of discretion by the authority concerned and hence is invalid.
Per Shah, J. Rules 148(3) and 149(3) do not infringe Art.311(2) or Art. 14of the Constitution. There is neither logic nor law in support of the contention that r. 148(3) contravenes Art. 311(2). The termination of employment under r. 148(3)does not involve the public servant concerned in loss of any right which he has already acquired. It does not amount to loss of a post to which he is entitled under the terms of his employment because the right to a post is necessarily circumscribed by the conditions of employment which include r. 148(3). It also does not cast any stigma upon him.
Mere determination of employment, of a public servant, whether he is a temporary employee, a probationer, a contractual appointee or appointed substantively to hold a permanent post, will not attract the provisions of Art.
311(2) unless the determination is imposed as a matter of punishment. A railway servant who has accepted employment on the conditions contained in the rules, cannot after having obtained employment, claim that the conditions which were offered to him and which he accepted, are not binding upon him. The sole exception to that rule is in cases where the 687 condition prescribed by contract or statutory regulations is void as inconsistent with the constitutional safeguard.
This exception is founded not on any right in the public servant to elect, but on t invalidity of the covenant or regulation. There is no distinction between cases of termination of employment resulting from attaining the age of superannuation or from orders of compulsory retirement terminating temporary employment or employment on probation and orders terminating employment after notice under R. 148(3) An appointment to a public post is always subject to the pleasure of the President, the exercise of such pleasure being restricted in the manner provided by the Constitution.
A person appointed substantively to a post does not acquire a right t hold the post till he dies. He acquires merely a right t hold the post subject to the rules. If employment is validly terminated, the right to hold the post is determined even apart from the exercise of the pleasure of the President or the Governor. public servant cannot claim to remain in office so long as he is of good behavior. Such a concept of the tenure of a public servant's post is inconsistent with Arts. 309 and 310 of the Constitution.
Rules 148(3) and 149(3) do not infringe Art. 14 of the Constitution. Art. 14 forbids class legislation but it does not forbid reasonable classification for the purpose of legislation. special conditions in which the railways have to operate and t interests of the nation which they serve, justify the classification If for the purpose of ensuring the interests and safety of the public and the State, the President has reserved to the Railway Administration power to terminate employment under the Railways, it cannot be assumed that such vesting of authority singles out the railway servants for a special or discriminatory treatment so as to expose the rule which authorises termination of employment to the liability to be struck off as infringing Art. 14.
It is true that R. 148(3) does not expressly provide for guidance to the authority exercising the power conferred by it, but on that account, the rule cannot be said to confer an arbitrary power and be unreasonable or be in its operation unequal. The power exercisable by the appointing authority who normally is if not the General Manager, a Senior Officer of the Railways. In considering the validity of an order of determination of employment under r. 148, an assumption that the power may be exercised mala fide and on that ground discrimination may be practiced, is wholly out of place. Because of the absence of specific directions in R. 148, governing the exercise of authority conferred the by the power to terminate employment cannot be regarded as an arbitrary power exercisable at the sweet will of the authority when having regard to the nature of the employment and the service to be rendered, importance of the efficient functioning of the rail transport in the interest of national economy and the 688 status of the authority invested with the exercise of power, it may reasonably be assumed that the exercise of the power would appropriately be exercised for the protection of public interest or on grounds of administrative convenience.
Power to exercise discretion is not necessarily to be assumed to be a power to discriminate unlawfully and possibility of abuse of power will not invalidate the conferment of power.
Case law referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 711-713 of 1962.
Appeals by special leave from the judgments and order dated May 27, 25, 1960, of the Assam High Court in Civil Rule Nos. 3 and 25 of 1960 respectively and December 15, 1959 of the Allahabad High Court in Special Appeal No. 502 of 1958.
CIVIL APPEAL No. 614 OF 1962.
Appeal by special leave from the order dated April 6, 1961 of the Punjab High Court in Letters Patent Appeal No. 81/1961.
CIVIL APPEALS Nos. 837 To 839 of 1963.
Appeals from the judgment and order date January 18, 1963 of the Assam High Court in Civil Rule 386 to 388 of 1961.
B.C. Ghose and P.K. Chatterjee, for the appellants (in C. A. Nos. 711 to 713/1962).
I.M. Lall and V.D. Mahajan, for the appellant (in C.A. Nos. 714 of 1962).
S.V. Gupte, Additional Solicitor-General, Naunit Lal and R.H. Dhebar, for the respondents (in C.A. Nos. 711714/1962).
C.K. Daphtary, Attorney-General, R. Ganapathy Iyar and R.H. Dhebar, for the appellants (in C.A. Nos. 837-839/1963).
B.C. Ghosh and P.K. Chatterjee, for the respondents (in C.A. Nos. 837-839/1963).
R.K. Garg, M.K. Ramamurthi, S.C. Agarwal and D.P. Singh, for the intervener (in C.A. No. 711/ 1962.) 689 R.K. Garg and P.K. Chatterjee, for the intervener ,(in C.A. Nos. 837-839./1963).
December 5, 1963. The Judgment of P.B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah and N. Rajagopala lyyangar, JJ. was delivered by Gajendragadkar J. K. Subba Rao, and K.C. Das Gupta JJ. delivered separate Opinion s. J.C. Shah J. delivered a dissenting Opinion.
GAJENDRAGADKAR J. These two groups of appeals have been placed before us for hearing together, because they raise a common question of law in regard to the Constitutional validity of Rules 148(3) and 149(3) contained in the Indian Railway Establishment Code, Vol. 1. (hereafter called the Code). The first group consists of four appeals. C.A. Nos. 711 & 712 of 1962 arise from two petitions filed by the appellants Moti Ram Deka and Sudhir Kumar Das respectively in the Assam High Court. Deka was a peon employed by the North East Frontier Railway, whereas Das was a confirmed clerk. They alleged that purporting to exercise its power under Rule 148 of the Code, the respondent, the General Manager North East Frontier' Railway, terminated their services and according to them, they said termination was illegal inasmuch as the Rule under which the impugned orders of termination had been passed, was invalid. This plea has been rejected by the Assam High Court and the writ petitions filed by the two appellants have been dismissed. It is against these orders of dismissal that they have come to this Court by special leave.
Civil Appeal No. 713 of 1962 arises out of a petition filed by the appellant Priya Gupta who was an Assistant Electrical Foreman employed by the North Eastern Railway, Gorakhpur.
His services having been terminated by the respondent General Manager of the said Railway, he moved the Allahabad High Court under Art. 226 of the Constitution and challenged the validity of the order terminating his services on the ground that Rule 148 of the Code was invalid. The appellant's plea has been rejected 1/SCI/64-44 690 by the said High Court both by the learned single Judge who heard his petition in the first instance and by the Division Bench which heard his Letters Patent Appeal. That is how the appellant has come to this Court by special leave.
Civil Appeal No. 714/1962 arises out of a writ petition filed by Tirath Ram Lakhanpal who was a Class A Guard employed by the Northern Railway, New Delhi. His services were terminated by the Respondent General Manager of the said Railway r under Rule 148 of the Code and his writ petition to quash the said order has been dismissed by the Punjab High Court. The learned single Judge who heard this writ petition rejected the pleas raised by the appellant, and the Division Bench which the appellant moved by way of Letters Patent Appeal summarily dismissed his Appeal. It is this dismissal of his Letters Patent Appeal which has brought the appellant to this Court by Special Leave. That is how this group of four appeals raises a common question about the validity of Rule 148.
The next group consists of three appeals which challenge the decision of the Assam High Court holding that the orders of dismissal passed by appellant No. 2, the General Manager, North East Frontier Railway, against the three respective respondents S.B. Tewari, Parimal Gupta and Prem Chand Thakur, under Rule 149 of the Code, were invalid. These three respondents had moved the Assam High Court for quashing the impugned orders terminating their services, and the writ petitions having been heard by a special Bench of the said High Court consisting of three learned Judges, the majority opinion was that the impugned orders were orders of dismissal and as such, were outside the purview of Rule 149.
According to this view, though Rule 149 may not be invalid, the impugned orders were bad because as orders of dismissal they were not justified by Rule: 149. The minority view was that Rule 149 itself is invalid, and so, the impugned orders were automatically invalid. In the result, the three writ petitions 691 filed by the three respondents respectively were allowed.
That is why the Union of India and the General Manager, N.E.F. Railway, appellants 1 & 2 respectively, have come to this Court with a certificate granted by the Assam High Court,. and they challenge the correctness of both the majority and the minority views. Thus, in these three appeals, the question about the validity of Rule 149 falls to be considered.
The first group of four appeals was first heard by a Constitution Bench of five Judges for some time. At the hearing before the said Bench, the learned Addl. Solicitor General conceded that the question about the validity of Rule 148 had not been directly considered by this Court on any occasion, and so, it could not be said that it was covered by any previous decision. After the hearing of the arguments before the said Bench had made some progress, the learned Addl. Solicitor-General suggested that he was strongly relying on certain observations made in the previous decisions of this Court and his argument was going to be that the said observations are consistent with his contention that Rule 148 is valid and in fact, they would logically lead to that inference. That is why the Bench took the view that it would be appropriate if a larger Bench is constituted to hear the said group of appeals, and so, the matter was referred to the learned Chief Justice for his directions. Thereafter, the learned Chief Justice ordered that the said group should be heard by a larger Bench of seven Judges of this Court. At that time, direction was also issued that the second group of three appeals which raised the question about the validity of Rule 149 should be placed for hearing along with the first group. In fact, the learned counsel appearing for both the parties in the said group themselves thought that it would be appropriate if the two groups of appeals are heard together. That is how the two groups of appeals have come for disposal before a larger Bench; and so, the main question which we have to consider is whether Rule 148(3), and Rule 149(3) which has superseded it are valid. The contention of the 692 railway employees concerned is that these Rules contravene the Constitutional safeguard guaranteed to civil servants by Art. 311(2). It is common ground that if it is held that the Constitutional guarantee prescribed by Art. 311(12) is violated by the Rules, they would be invalid; on the other hand the Union of India and the Railway Administration contend that the said Rules do not contravene Art. 311(2), but are wholly consistent with it.
At this stage, it would be. convenient to refer r to the two Rules. Rule 148 deals with the termination of service and periods of notice. Rule 148(1) deals with temporary railway servants; R. 148(2) deals with apprentices, and R. 148(3) deals with other (non-pensionable) railway servants. It is with R. 148(3) that we are concerned in the present appeals.
It reads thus:"(3) Other (non-pensionable) railway servants: The service of other (non-pensionable) railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not however required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity." "Note:-The appointing authorities are empowered to reduce or waive, at their discretion, the stipulated period of notice to be given by an employee, but the reason justifying their action should be recorded.
This power cannot be re-delegated." Then follow the respective periods for which notice has to be given. It is unnecessary to refer to these periods.
We may incidentally cite Rule 148(4) as well which reads thus:693 "In lieu of the notice prescribed in this rule, it shall be permissible on the part of the Railway Administration to terminate the service of a railway servant by paying him the pay for the period of notice." It is thus clear that R. 148(3) empowers the appropriate authority to terminate the services of other non-pensionable railway servants after giving them notice for the specified period, or paying them their salary for the said period in lieu of notice under R. 148(4).
The non-pensionable services were brought to an end in November, 1957 and an option was given to the non-pensionable servants either to opt for pension. Able to service or to continue on their previous terms and conditions of service. Thereafter, Rule 149 was framed in place of R.
148. Rule 149(1) & (2) like Rule 148(1) & (2) deal with the temporary railway servants and apprentices respectively.
Rule 149(3) deals with other railway servants; it reads thus:"Other railway servants:-The services of other railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity" The Rule then specifies the different periods for which notice has to be given in regard to the different categories of servants, It is unnecessary to refer to these periods.
Then follow sub-rule (4). The same may be conveniently set out at this place:
"(4) In lieu of the notice prescribed in this rule, it shall be permissible on the part of the Railway Administration to terminate the service of a railway servant by paying him the pay for the period of notice.
Note:-The appointing authorites are empowered to reduce or waive, at their discretion, the stipulated period of notice to be given by an employee, but the reason justifying their action should be recorded.
This power cannot be re-delegated." Just as under' Rule 148(3) the services of the railway employees to which it applied could be terminated after giving them notice for the period specified, so under R.
149(3) termination of services of the employees concerned can be brought about by serving them with a notice for the requisite period, or paying them their salary for the said period in lieu of notice under R. 149(4). Rule 149(3) applies to all servants other than temporary servants and apprentices. The distinction between pensionable and non-pensionable servants no longer prevails. The question which we have to consider in the present appeals is whether the termination, of services of a permanent railway servant under Rule 148(3) or Rule 149(3)amounts to his removal under Art.
311(2) of the Constitution. If it does, the impugned Rules are invalid; if it does not, they said Rules are valid.
That takes us to the question as to the true scope and effect of the provisions contained in Art.311(2),and the decision of this question naturally involves the construction of Art.
311(2) read in the light of Articles 309 and 310. In considering this point, if may be useful to refer very briefly to the genesis of these provisions and their legislative background. In this connection, it would be enough for our purpose if we begin with the Government of India Act, 1833. Section 74 of the said Act made the tenure of all Services under the East India Company subject to His Majesty's pleasure. These servants were also made subject to the pleasure of the Court of Directors with a proviso which excepted from the said rule those who had been appointed directly by His Majesty. In due course, when the Crown took over the government of this country by the Government of India Act, 1858, section 3 conferred on the Secretary of 695 State all powers which has till then vested in the Court of Directors, while the powers in relation to the servants of the Company which had till then vested in the Director were, by s. 37, delegated to the Secretary of State.
This position continued until we reach the Government of India Act, 1915. This Act repealed all the earlier Parliamentary legislation and was in the nature of a consolidating Act. There was, however a saving clause contained in section 130 of the said Act which preserved the earlier tenures of servants and continued the rules and regulations applicable to them. Section 96B of this Act which was enacted in 1919 brought about a change in the constitutional position of the civil servants.' Section 96B(1) in substance, provided that "subject to the provisions of this Act and the rules made there under, every person in the civil service of the Crown in India holds office during His Majesty's pleasures and it added that no person in that service may be dismissed by any authority subordinate to that by which he was appointed. It also empowered the Secretary of State in Council to reinstate any person in that service who had been dismissed, except so far as the Secretary of State in Council may, by rules, provide to the contrary. Section 96B(2) conferred power on the Secretary of State in Council to make rules for regulating the classification of the Civil Services in India, the method of recruitment, the conditions of service, pay and allowances and discipline and conduct while sub section (4) declared that all service rules then in force had been duly made and confirmed the same.
In 1935, the Government of India Act 1935 was passed and s. 96B( 1) was reproduced in subsection (1) and (2) of section 240, and a new sub-section was added as ss. (3). By this new sub-section, protection was given to the civil servant by providing that he shall not be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The definition contained in s. 277 of the said 596 act shows that the expression "dismissal" included removal from service.
That continued to be the position until the Constitution was adopted in 1950. The Constitution has dealt with this topic in Articles 309, 310 and 311. Art.310 deals with the tenure of office of persons serving the Union or a State, and provides that such office is held during the pleasure of the President if the post is under the Union, or during the pleasure of the Governor if the post is under a State. The doctrine of pleasure is thus embodied by Art. 310(1). Art.
310(2) deals with cases of persons appointed under contract, and it provides that if the President or the Governor deems it necessary in order to secure the services of a person having special qualifications, he may appoint him under a special contract and the said contract may provide for the payment to him of compensation if before the expiration of an agreed period, that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate: that post. it is significant that Art.
310(1) begins with a clause "except as expressly provided by this Constitution"'. In other words,if there are any other provisions in the Constitution which impinge upon it, the provisions of Art. 310(1) must be read subject to them. The exceptions thus contemplated may be illustrated by ,reference to Articles 124, 148, 218 and 324. Another exception is also provided by Art. 31 1. In other words, Art. 311 has to be read as a proviso to Art. 310, and so, there can be no doubt that the pleasure contemplated by Art.
310(1) must be exercised subject to the limitations prescribed by Art. 31 1.
Art. 309 provides that subject to the provisions of the constitution, Acts of the appropriate Legislative may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State.
This clearly means that the appropriate Legislature may pass Acts in respect of the terms and conditions of service of persons appointed to public 697 services and posts, but that must be subject to the provisions of the constitution which inevitably brings in Art. 310(1). The proviso to Art. 309 makes it clear that it would be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may. direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and prescribing the conditions of service of persons respectively appointed to services and posts under the Union or the State The pleasure of the President or the Governor mentioned in Art. 310(1) can thus be exercised by such person as the President or the Governor may respectively direct in that behalf, and the pleasure thus exercised has to be exercised in accordance with the rules made in that behalf. These rules, and indeed the exercise of the powers conferred on the delegate must be subject to Art. 310, and so Art. 309 cannot impair or affect the pleasure of the President or the Governor therein specified. There is thus no doubt that Art. 309 has to be read subject to Articles 310 and 31 1, and Art. 310 has to be read subject to Art 311. It is significant that the provisions contained in Art. 311 are not subject to any other provision of the Constitution. Within the field covered by them they are absolute and paramount. What then is the effect of the provisions contained in Art. 311(2)? Art. 311(2) reads thus:"No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." We are not concerned with the cases covered by the proviso to this article in the present appeals. It may be taken to be settled by the decisions of this Court that since Art.
311 makes no distinction between permanent and temporary posts, its protection must be held to extend to all government servants holding 698 permanent or temporary posts or officiating in any of them.
The protection afforded by Art. 311(2) is limited to the imposition of three major penalties contemplated by the service Rules, viz., dismissal, removal or reduction in rank. It is true that the consequences of dismissal are more serious than those of removal and in that sense, there is a technical distinction between the two; but in the context, dismissal, removal and reduction in rank which are specified by Art. 311 (2) represent actions taken by way of penalty. In regard to temporary servants, or servants on probation, every case of termination of service may not amount to removal. In cases falling under these categories, the terms of contract or service rules may provide for the termination of the services on notice of a specified period, or on payment of salary for the said period, and if in exercise of the power thus conferred on the employer, the services of a temporary or probationary servant are terminated, it may not necessarily amount to removal. In every such case, courts examine the substance of the matter, and if it is shown that the termination of services is no more than discharge simplicities effected by virtue of the contract or the relevant rules, Art. 311(2) may not be applicable to such a case. If, however, the termination of a temporary servant's services in substance represents a penalty imposed on him or punitive action taken against him, then such termination would amount to removal and Art.
311(2) would be attracted. Similar would be the position in regard to the reduction in rank of an officiating servant.
This aspect of the matter has been considered by this Court in several recent decisions, vide Jagdish Mitter v. Union of India(1) State of Bihar v. Gopi Kishore' Prasad(2) State of Orissa & Anr. v. Ram Narayan Das(3) S. Sukhbans Singh v. The State of Punjab(4) and Madan Gopal v. The State of Punjab & Qrs. (5) (1) A. 1. R. 1964 S. C. 449.
(3) [1961] 1 S. C.R. 606.
(2) [1961] 2 S. C. R. 590.
(4) [1963] 1 S. C. R. 416.
(5) [1963] 3 S. C. R. 716.
699 This branch of the law must, therefore, be taken to be well settled.
In regard to servants holding substantively a permanent post who may conveniently be describe hereafter as permanent servants, it is similarly well settled that if they are compulsorily retired under the relevant service rules, such compulsory retirement does not amount to removal under Art.
311 (2). Similarly, there can be no doubt that the retirement of a permanent servant on his attaining the age of superannuation does not amount to his removal within the meaning of Art. 311(2).
The question which arises for our decision in the present appeals is: if the service of a permanent civil servant is terminated otherwise than by operation of the rule of superannuation, or the rule of compulsory retirement does such termination amount to removal under Art. 311(2) or not ? It is on the aspect of the question that the controversy between the parties arises before us.
Before dealing with this problem, it is necessary to refer to the relevant. Railway Rules themselves Speaking historically, it appears that even while the affairs of the country were in charge of the East India Company, there used to be some regulations which were substantially in the nature of administrative instructions in regard to the conditions of service of the Company's employees. These regulations were continued by s. 130(c) of the Government of India Act, 1915 which provided, inter alia that the repeal shall not affect the tenure of office, conditions of service, terms of remuneration or right to pension of any officer appointed before the commencement of this Act.
Section 96B(2) which was inserted in the said Act in 1919, however, provided that the said regulations could be modified or superseded by rules framed by the Secretary of State. In due course, the Secretary of State framed certain rules The first batch of rules was framed in December 1920.
They applied to all officers in the All India Provincial as well as Subordinate Services and governed 700 even officers holding special posts. The Local Government had a limited power in respect of officers in the All-India Services under their employment and this power was confined to imposing on them punishments of censure, reduction, withholding of promotion and suspension (vide Rule 10); in the case of Provincial Services, however, the powers of the Local Government were plenary They could not only impose the penalties to which we have just referred, but also remove or dismiss them (vide Rule 13). It appears that Rule 14 prescribed the procedure which had to be followed in imposing the penalty of dismissal, removal or reduction; and so, it may be said that for the first time these three major punishments were collated together and a special procedure prescribed in that behalf. No definition of removal was, however, prescribed. Incidentally, we may refer to Rule XX which is included in the group of rules relating to appeals.
Under this rule, an appeal would not lie against; (1) the discharge of a person appointed on probation before the end of his probation, and (2) the dismissal and removal of a person appointed by an authority in India to hold a temporary appointment. It would be permissible to point out that this provision would show that the termination of the services of a person permanently employed would not have fallen within the ambit of this rule.
The Rules thus framed in 1920 were amended from time to time and were re-issued in June, 1924. It appears that subsequent to 1924, fresh rules were made under the Governors Provinces Civil Services (Control and Appeal) Rules and Governors Provinces Civil Services (Delegation) Rules of 1926 which were published in March, 1926. Then followed the Rules framed by the Secretary of State in 1930.
These Rules were in force when the Government of India Act, 1935 was enacted, and they continue in force even now by reason of Article 313. We ought to add that these Rules superseded all the earlier rules and constitute an exhaustive code as regards disciplinary matters. Rule 3(b) of these rules excluded the 701 Railway Servants from the application of said rules, and that furnishes the historical background why separate Fundamental Rules for Railway corresponding to the Fundamental Rules in other public services, came to be framed.
Before we proceed to the relevant Railway Rule we may incidentally mention Rule 49 of the Rules framed by the Secretary of State in 1930. This provides that penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the clauses (1) to (5) specified in Rule 14.
These penalties. number seven in all. Amongst them are mentioned reduction to a lower post, dismissal and removal.
Then follows an explanation which is useful for our purpose.
Before quoting that explanation it may be. pointed out that the said explanation which was originally introduced under Rule 49, was subsequently amended once in 1948, then in 1950 lastly in 1955 when explanation No. 2 was added Thus amended, the two explanations read as follows:
"Explanation 1 The termination of employment (a) of a person appointed on probation during or at the end of the period of probation, in accordance with the terms of the appointment and the rules governing the probationary service; or (b) of a temporary Government servant appointed otherwise than under contract, in accordance with rule 5 of the Central Civil Services (Temporary Service) Rules, 1949; or (c) of a person engaged under a contract, does not amount to removal or dismissal within the meaning of this rule or of rule 55.
Explanation II:-Stopping a Government Servant at an efficiency bar in the time scale of his pay on the ground of his unfitness to cross the bar does not amount to withholding of increments or promotions within the meaning of this rule." 702 Looking at clauses (a), (b) and (c) of Explanation 1, it would be apparent that these clauses deal with persons appointed on probation, or appointed as temporary servants, or engaged on a contract, and the effect of the said explanation is that the termination of the services of such persons does not amount to removal or dismissal within the meaning of Rule 49 or Rule 55. In other words, R. 49 read along with explanation 1, would prima facie, inferentially support the contention that in regard to a permanent civil servant, the termination of his services otherwise than under the rule of superannuation or compulsory retirement would amount to removal.
Let us then consider the relevant Railway Fundamental Rules which have a bearing on the point with which we are concerned. Paragraph 2003 of the Code, Vol. 11 which corresponds to Fundamental Rule 9 contains definitions.
Fundamental Rule 9(14) defines a lien as meaning the title of a Railway servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. An officiating servant is defined by F.R. 9(19) as one who performs the duties of a post on which another person holds a lien, or when a competent authority appoints him to officiate in a vacant post on which no other railway servant holds a lien. There is a proviso to this definition which is not relevant for our purpose. That takes us to the definition of a permanent post which under F.R. 9(22) means a post carrying a definite rate of pay sanctioned without limit of time. A, temporary post, on the other hand, means under F.R. 9 (29) a post carrying a definite rate of pay sanctioned for a limited time, and a tenure post means under F. R. 9 (30) a permanent post which an individual railway servant may not hold for more than a limited period. It is thus clear that as a result of the relevant definitions, a permanent post carries a definite ate of pay without a limit of time and a servant who substantively holds a permanent post has 703 a title to hold the post to which he is substantively appointed, and that, in terms, means that a permanent servant has a right to hold the post until, of course he reaches the age of superannuation, or until he is compulsorily retired under the relevant rule.
It is in the light of this position that we must now proceed to examine the question as to whether the termination of the permanent servant's services either under Rule 148(3) or R. 149(3) amounts to his removal or not. On this point, two extreme contentions have been raised before us by the parties The learned Addl. Solicitor-General contends that in dealing with the present controversy, we must bear in mind the doctrine of pleasure which has been enshrined in Art. 310(1). He argues that every civil servant holds his office during the pleasure the President or the Governor.
It is true that in the present cases, we are dealing with rules framed under the proviso to Art. 309 and in that sense, the question of pleasure on which so much stress is laid by the learned Addl. Solicitor-General may not directly arise; but it must be conceded that the point raised for our decision may have some impact on the doctrine of pleasure, and so it needs to be examined. The argument is that all civil service is strictly speaking precarious in character. There is no guarantee of any security of tenure, because the pleasure of the President or the Governor can be exercised at any time against the civil servant. It is true that this pleasure would not be exercised capriciously, unjustly or unfairly, but the existence of the doctrine of pleasure inevitably imposes a stamp of precarious character on the tenure enjoyed by the civil servant, and so it is urged whether Rule 148 or R. 149 is made or not, it would be open to the President or the Governor to terminate the services of any civil servant to whose case Art. 110(1) applies.
The learned Addl. Solicitor-General has also impressed upon us the necessity to construe Art. 310(1) and Art. 311 in such a manner that the pleasure contemplated by Art. 310(1) does not become illusory or is not completely obliterated. He, therefore, suggests that Art. 311(2) which is in the nature of a proviso or an exception to Art. 310(1) must be strictly construed and in all cases falling outside the scope of the said provision, the pleasure of the President or the Governor must be allowed to rule supreme.
On the other hand, it has been urged by the learned counsel appearing for the railway servants concerned before us that the pleasure of the President is controlled by Art. 311 and if the argument of the learned Addl. Solicitor-General is accepted and full scope given to the exercise of the said pleasure, Art. 311 itself would become otiose. It is urged that the employment in civil service can be terminated only after complying with Art. 311 and any rule which violates the guarantee provided by the said Article would be invalid.
In fact, the argument on the other side is that the word "removal" should receive a much wider denotation than has been accepted by this Court in its decisions bearing on the point, and that all terminations of services in respect of all categories of public servants should be held to constitute removal within Art. 311(2). We are inclined to hold that the two extreme contentions raised by both the parties must be rejected. There is no doubt that the pleasure of the President on which the learned Addl.
Solicitor General so strongly relies has lost some of its majesty and power, because it is clearly controlled by the provisions of Art. 31 1, and so, the field that is covered by Art. 311 on a fair and reasonable construction of the relevant words used in that article, would be excluded from the operation of the absolute doctrine of pleasure. The pleasure of the President would still be there, but it has to be exercised in accordance with the requirements of Art.
Besides, as this Court has held in the State of Bihar v. Abdul Majid(1), the rule of English Law pithily expressed in the latin phrase "duranto bene placito" ("during pleasure") has not been fully adopted either (1) [1954] S.C.R. 786, 799. 705 by section 240 of the Government of India Act, 1935, or by Art. 3 1 0(1). To the extent to which that rule has been modified by the relevant provisions of: S. 240 of the Government of India Act, 1935, or Art. 311 the Government servants are entitled to relief like any other person under the ordinary law and that relief must be regulated by the Code of Civil Procedure . It is mainly on the basis of this principle that this Court refused to apply the doctrine against abdul Majid that a civil servant cannot maintain suit against a State or against the Crown for the recovery of arrears of salary due to him. Thus, the extreme contention based on the doctrine of pleasure enshrined in Art. 310(1) cannot be sustained. Similarly, we do not think it would be possible to accept the argument that the word "removal" in Art. 311(2) should receive the widest interpretation. Apart from the fact that the said provision is in the nature of a proviso to Art. 3 1 0(1) and must, therefore, be strictly construed, the point raised by the contention is concluded by the decisions of this Court and we propose to deal with the present appeals on the basis that the word " removal" like the two other words "dismissal" and "reduction in rank" used in Art. 311(2) refer to cases of major penalties which were specified by the relevant service rules. Therefore, the true position is that Articles 310 and 311 must no doubt be read together, but once the true scope and effect of Art. 311 is determined, the scope and effect of Art. 310(1) must be limited in the sense that in regard to cases falling under Art. 311(2) the pleasure mentioned in Art. 310(1) must be exercised in accordance with the requirements of Art. 311.
It is then urged by the learned Addl. Solicitor General that Art. 310 does not permit of the concept of tenure during good behaviour. According to him, in spite of the rule of superannuation, the services of a civil servant can be terminated by the President exercising his pleasure at any time. The rule of superannuation on this contention merely gives an indication to the civil servant as to the length of time 1/SCI/64-45 706 he may expect to serve, but it gives him no right to continue during the whole of the said period. In fact, the learned Addl. Solicitor-General did not disguise the 'act that according to his argument Whether or not a rule of superannuation is framed and whether or not Rule 148 or R.
149 is issued, the President's pleasure can, be exercised independently of these Rules and the action taken by the President in exercise of his pleasure cannot be "questioned under Art. 311(2).
Alternatively,_ he contends that if Art. 311(2) is read in a very general and wide sense, even the rule as to the age of superannuation may be questioned as being invalid, because it does put an end to the service of a civil servant. We are not impressed by this argument. We will no doubt have to decide what cases of termination of services of permanent civil servants amount to removal; but once that question is determined, wherever it is shown that a permanent civil servant is removed from his service, Art. 311(2) will apply and Art. 310(1) cannot be invoked independently with the object of justifying the contravention of the provisions of Art. 311(2).
In regard to the age of superannuation, it may be said prima facie that rules of superannuation which are prescribed in respect of public services in all modem States are based on considerations of life expectation, mental capacity of the civil servants having regard to the climatic conditions under which they work, and the nature of the work they do.
They are not fixed on any ad hoc basis and do not involve the exercise of any discretion. They apply uniformly to all public servants falling under the category in respect of which they are framed. Therefore, no analogy can be suggested between the rule of superannuation and-.Rule 148(3) or Rule 149(3). Besides., nobody has questioned the validity of the rule of superannuation, and so, it would be fruitless and idle to consider whether such a rule can be challenged at all.
Reverting then to the nature of the right which a permanent servant has under the relevant Railway Rules, what is the true position? A person Who 707 substantively holds a permanent post has a right to continue in service, subject, of course, to the rule of superannuation and the rule as to compulsory retirement. If for any other reason that right is invaded and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service and as such, it is, in the nature of a penalty and amounts to removal. In other words, termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement, must per se amount to his removal, and so, if by R. 148(3) or IC. 149(3) such a termination is brought about, the Rule clearly contravenes Art. 311(2) and must be held to be invalid. It is common ground that neither of the two Rules contemplates an enquiry and in none of the cases before us has the procedure prescribed by Art. 311(2) been followed. We appreciate the argument urged by the learned Addl.
Solicitor-General about the pleasure of the President and its significance; but since the pleasure has to be exercised subject to the provisions of Art. 31 1, there would be no escape from the conclusion that in respect of cases falling under Art. 311(2), the procedure prescribed by the said Article must be complied with and the exercise of pleasure regulated accordingly.
In this connection, it is necessary to emphasise that the rule-making authority contemplated by Art. 309 cannot be validly exercised so as to curtail or affect the rights guaranteed to public servants under Art. 311(1). Art.
311(1) is intended to afford a sense of security to public servants who are substantively appointed to a permanent post and one of the principal benefits which they are entitled to expect is the benefit of pension after rendering public service for the period prescribed by the Rules. It would, we think, not be legitimate to contend that the right to earn a pension to which a servant substantively appointed to a permanent post is entitled can be curtailed by Rules framed under Art. 309 so as to make the said right either ineffective or illusory. Once the scope of Art. 311(1) and (2) is duly determined, it must be held that no Rule 708 framed under Art. 309 can trespass on the rights guaranteed by Art. 311. This position is of basic importance and must be borne in mind in dealing with the controversy in the present appeals.
At this stage, we ought to add that in a modern democratic State the efficiency and incorruptibility of public administration is of such importance that it is essential to afford to civil servants adequate protection against capricious action from their superior authority. If a permanent civil servant is guilty of misconduct, he should no doubt be proceeded against promptly under the relevant disciplinary rules, subject, of course, to the safeguard prescribed by Art. 311(2); but in regard to honest, straightforward and efficient permanent civil servants, it is of utmost importance even from the point of view of the State that they should enjoy a sense of security which alone can make them independent and truly efficient. In our opinion, the sword of Damocles hanging over the heads of permanent railway servants in the form of R. 148(3) or R.
149(3) would inevitably create a sense of insecurity in the minds of such servants and would invest appropriate authorities with very wide powers which may conceivably be abused.
In this connection, no distinction can be made between pensionable and non-pensionable service. Even if a person is holding a post which does not carry any pension, he has a right to continue in service until he reaches the age of superannuation and the said right is a very valuable right.
That is why the invasion of this right must inevitably mean that the termination of his service is, in substance, and in law, removal from service. It appears that after Rule 149 was brought into force in 1957, another provision has been made by Rule 321 which seems to contemplate the award of some kind of pension to the employees whose services are terminated under Rule 149(3). But it is significant that the application of R. 149(3) does not require, as normal rules of compulsory retirement do "that the power conferred by the said Rule can be exercised in respect of servants who have 709 put in a prescribed minimum period of service. Therefore, the fact that some kind of proportionate pension is awardable to railway servants whose services are terminated under R. 149(3) would not assimilate the cases dealt with under the' said Rule to cases of compulsory retirement. As we Will presently point out, cases of compulsory retirement which have been considered by this Court were all cases where the rule as to compulsory retirement came into operation before the age of superannuation was reached and after a Prescribed minimum period of service had been put in by the servant.
It is true that the termination of service authorised by R.
148(3) or R. 149(3) contemplates the right to terminate on either side. For all practical purposes, the right conferred on the servant to terminate his services after giving due notice to the employer does not mean much in the present position of unemployment in this country; but apart from it, the fact that a servant has been given a corresponding right cannot detract from the position that the right which is conferred on the railway authorities by the impugned Rules is inconsistent with Art. 311(2), and so, it ha to be struck down in spite of the fact that a similar right is given to the servant concerned.
It has, however, been urged that the railway servants who entered service with the full knowledge of these Rules cannot be allowed to complain that the Rules contravene Art.
311 and are, therefore invalid. It appears that under Rule 144 (which was originally Rule 143), it was obligatory on railway servants to execute a contract in terms of the relevant Railway Rules. That is how the argument based on the contract and its binding character arise If a person while entering service executes a contract containing the relevant Rule in that behalf with open eyes, how can he be heard to challenge the validity of the said Rule, or the said contract? In our opinion this approach may be relevant in dealing with purely commercial cases governed by rules of contract but it is wholly inappropriate in dealing with a case 710 where the contract or the Rule is alleged to violate a constitutional guarantee afforded by Art. 311(2); land even as to commercial transactions, it is well known that if the contract is void, as for instance, under s. 23 of the Indian Contract Act , the plea that it was executed by the party would be of no avail. In any case, we do not think that the argument of contract and its binding character can have validity in dealing with the question about the constitutionality of the impugned Rules.
Let us then test this argument by reference to the provisions of Art. 311(1). Art. 311(1) provides that no person to whom the said article applies shall be dismissed or removed by an authority subordinate to that by which he was appointed. Can it be suggested that the Railway Administration can enter into a contract with its employees by which authority to dismiss or remove the employees can be delegated to persons other than those contemplated by Art.
311 (1)? The answer to this question is obviously in the negative, and the same answer must be given to the contention that as a result of the contract which embodies the impugned Rules, the termination of the railway servant's services would not attract the provisions of Art. 311(2), though, in law, it amounts to removal. If the said termination does not amount to removal, then, of course, Art. 311(2) would be inapplicable and the challenge to the validity of the impugned Rules would fail; but if the termination in question amounts to a removal, the challenge to the validity of the impugned Rules must succeed notwithstanding the fact that the Rule has been included in a contract signed by the railway servant.
There is one more point which still remains to be considered and that is the point of construction. The learned Add1.
Solicitor-General argued that in construing the impugned Rule 148(3) as well as R. 149(3), we ought to take into account the fact that the Rule as amended has been so framed as to avoid conflict with, or non-compliance of, the provisions of Art. 311(2), and so, he suggests that we should 711 adopt that interpretation of the Rule which would be consistent with Art. 311(2). The argument is that the termination of services permissible under the impugned Rules really proceeds on administrative grounds or considerations of exigencies of service. If, for instance, the post held by a permanent servant is abolished, or the whole of the cadre to which the post belonged is brought to an end and the railway servant's services are terminated in consequence, that cannot amount to his removal because the termination of his services is not based on any consideration personal to the servant. In support' of this argument, the Addl. Solicitor-General wants us to test the provision contained in the latter portion of the impugned Rules. We are not impressed by this argument. What the latter portion of the impugned Rules provides is that in case a railway servant is dealt with under that portion, no notice need be served on him. The first part of the Rules can reason ably and legitimately take in all cases and may be used even in respect of cases falling under the latter category, provided, of course, notice for the specified period or salary in lieu of such notice is give to the railway servant. There is no doubt that on a fair construction, the impugned Rules authorise the Railway Administration to terminate the services of all the permanent servants to, whom the Rules apply merely on giving notice for the specified period, or on payment of salary in lieu thereof, and
