TMI Blog1973 (8) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was constituted for the State of Kerala by an order dated 29 May, 1965. The Government of Kerala on 26 October, 1965 sanctioned the creation of a temporary post of Vigilance Commissioner for a period of three Years from 3 June, 1965. P. D. Nandana Menon assumed charge as Vigilance Commissioner in that temporary post. By an order dated 16 April, 1966 the Government of Kerala defined the constitution, jurisdiction, powers and functions of the Commission. The Order stated that the Commission would be beaded by a full time officer designated as Vigilance Commissioner. The Vigilance Commissioner under the order was to be appointed by the Governor of the State and was not to be removed or suspended from office except in the manner provided for the removal or suspension of the Chairman of the Kerala Public Service Commission. On 24 January, 1968 the continuance of the temporary post was sanctioned for a period of one year with effect from 3 june, 1968. Meanwhile P. D. Nandana Menon retired from the post. By an order dated 24 September, 1968 the appellant Ramanatha Pillai was appointed as Vigilance Commissioner on a consolidated pay of ₹ 2500 per month for a term of three year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner. After taking the decision to abolish the Vigilance Commission the Government considered the feasibility of omitting the provisions in the budget, but it was found to be too late to make any changes. The post of Vigilance Commissioner was sanctioned upto 28 February, 1970.. The appellant Ramanatha Pillai raised three principal contentions in the High Court. First, that the abolition of the post of Vigilance Commissioner amounted to removal of the appellant from service within the meaning of Article 311 of the Constitution. Second, that the abolition of the post was made mala fide. Third, the appellant entered into an agreement with the Government and by accepting the offer changed his position and the State was precluded from altering the terms of agreement on the principle of estoppel. The High Court did not accept any of the contentions. The High Court held that the termination of service resulting from the abolition of the post would not attract the provisions of Article 311 of the Constitution. The High Court however added that this would be so when the abolition of the post was not a colourable exercise of power with a view to removing.the incumbent holding the post fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. First, the order abolishing the post is vitiated by mala fides of respondent No. 2. Second, the abolition of the post does not terminate the agreement, dated 20 December, 1968. Third, the abolition of the post has the effect of terminating the services of the appellant, and, therefore, it is invalid by reason of non-compliance with the provisions of Article 311 of the Constitution. Fourth, the order of the Government was made without giving an opportunity to the appellant and thereby violated the principles of natural justice. It was said that the order of Government entailing the civil consequences of loss of service could be made only after observing the principles of natural justice. Fifth, the principle of estoppel applies to the case that it was not lawful for the Government to terminate the services of the appellant. On behalf of the other appellants the contentions are these. The right to permanent tenure is created by rules or Acts. The executive decision cannot put an end to these rights. Service Rules create statutory rights to receive salary and pension till theage of superannuation. These statutory rights constitute property within the meaning of Article 19(1)(f), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced in rank except after an enquiry in which he has been informed of all the charges against him and giving a reasonable opportunity of being heard in respect of those charges. Further, where it is Proposed, after such enquiry, to impose on him any such penalty of dismissal, removal or reduction in rank he has to be riven an opportunity of making representation to the penalty proposed. Article 309 provides that subject to the provisions of the Constitution, Acts of the appropriate Legislature 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. Therefore, Acts in respect of terms and conditions of service of persons are contemplated. Such Acts of Legislature must however be subject to the provisions of the Constitution. This attracts Article 310(1). The proviso to Article 309 makes it competent to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of benefit. There may also be an element of personal blameworthiness. of the Government servant. Reduction in rank is also a punishment. The expression rank in Article 311(7) has I reference to a person's classification and not to his particular place in the same cadre in the hierarchy of the service to which he belongs. Merely sending back a servant to his substantive post has been held not to be a reduction in rank as a punishment since he had no legal right to continue in officiating post. The striking cut of a name from the panel has been held to affect future rights of promotion and to be a reduction in rank. A reduction in rank is a punishment if it carries pen consequences ,With it. In Dhingra case (supra) it has been said that whether a servant is punished by way of reduction in rank is to be, found by applying one of the two following tests : whether the servant has a right to the post or the rank or whether evil consequences'such as forfeiture of pay or allowances loss of seniority in his substantive rank, stoppage ,or postponement of future chances of promotion follow as a result of the order. Any and every termination of service cannot amount to dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the observations at pp. 706-707 of the Report in Moti-Ram Deka case (supra). The observations are these. A person who 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 . These observations were extracted in support of the contention that Moti Ram Deka case (supra) is an authority for the proposition that abolition of post amounts to removal. That is totally misreading the decision in Moti Ram Deka case (supra). The phrase if for any other reason that right is invaded is in juxtaposition to the two exceptions of the rule of superannuation and the rule of compulsory retirement as exceptions to the applicability of Article 311. The third exception of termination as a result of the abolition of a post was not being considered in that portion of the judgment in Moti Ram Deka case (supra). Earlier in the judgment in M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s abolished or unless he is guilty of misconduct was examined In Moti Ram Deka case. In Moti Ram Deka case (supra) it has been said that in regard to temporary servants or servants on probation the terms of contract or service rules may provide for the termination of the service on notice of a specified period or on payment of salary for the said period, and if in exercise of the power thus conferred the services of a temporary or probationary servant are terminated,' it may not necessarily amount to removal. , If it is shown that the termination of services is no more than discharge simpliciter effected by virtue of the contract, or the relevant rules, Article 311 (2) may not be applicable to such a case, If, however, the, termination of a temporary servant's service in substance represents a penalty imposed on him or punitive action is taken against him then such termination would amount to removal and Article 311(2) would be attracted. The position would be the same in regard to reduction in rank of an officiating servant. The termination of the service of a permanent servant on the terms of a contract or under a service rule will attract Article 311 if such termination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e President or the Governor must be allowed to rule. This Court in Moti Ram Deka case (supra) said that the pleasure of the President has to be exercised in accordance with the requirements of Article 311. Once it is shown that a permanent civil servant is removed from service Article 311 (2) would apply and Article 310 (1) cannot be invoked independently with the object of justifying the contravention of the provisions of Article 311(2) Where it was said in Moti Ram Deka (Supra) that the order of termination could be effective after complying with Article 311 it was presumed that the provisions of Article 311, viz., issue of the charge-sheet, enquiry would be applicable to such cases of termination. With regard to abolition of post and consequential termination no charges could normally be framed and no enquiry could be held. Therefore, apart from the consideration that abolition of post is not infliction of a penalty like dismissal or removal or reduction in rank, the framing of charge, the enquiry and opportunity of showing cause against the imposition of penalty cannot normally apply to the case of abolition of post. The discharge of the civil servant on account of abolition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as a provision in the contract. The provisions of Article 310(2) furnish intrinsic evidence that the right to abolish the post is a category of power exercisable by the State. Article 310 is prefaced by the words expressly provided by this Constitution. The abolition of post may have the consequence of termination of service of a government servant. Such termination is not dismissal or removal within the meaning of Article 311 of the Constitution. The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of abolition of post. The abolition of post is not a personal penalty against the government servant. The abolition of post is an executive policy decision. Whether after abolition of the post. the Government servant who was holding the post would or could be offered any employment under the State would therefore be a matter of policy decision of the Government because the abolition of post does not confer on the person holding the abolished post any right to hold the post. The High Court was correct in holding that no estoppel could arise against the State in regard to abolition of post. The appellant Raman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omes to an end on the abolition of the post which a Government servant holds. Therefore. a Government servant cannot complain of a violation of Article 19(1) (f) and Article 31 of the Constitution when the post is abolished. Article 14 is not attracted on the facts of the present cases. The appellant in C.A. No. 275 of 1971 was appointed to the ad hoc post of the Vigilance Commissioner. In C.A. No. 2231 of 1970 the Chairman and the Members of the Subordinate Services Selection Board were discharged on the abolition of that Board. Their cases are similar to the case of the appellant in C.A. No. 275 of 1971. In C.A. No. 248 of 1971 the appellants were permanent teachers of the Training Institute. Their duty was to coach the trainees in certain subjects. As the trainees did not offer the subjects in which the appellants were specialists, they became surplus. Their cases also resemble the case of the appellant in C.A. No. 275 of 1971. On the facts of these cases the appellants cannot complain of discrimination because it could not be and has not been shown that the Government servants similarly situated had been allowed to remain in service. The High Court was correct in all the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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