TMI Blog1988 (12) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... as October 25 1968 his services however were terminated under Article 310 of the Constitution. No reason was assigned. He instituted a suit in forma-pauperise for declaration that the termination of his service was illegal and void ab initio. In the alternative he claimed damages or compensation of ₹ 75 000 for illegal termination. The trial court awarded him ₹ 25 000 as damages together with interest at 6 per cent per annum for the illegal termination of his services. That decree was confirmed by the High Court of Kerala. This appeal is directed against that Judgment of the High Court. On July 30, 1976 a Bench of this Court dismissed the appeal on merits. But upon review that judgment was set aside and the appeal was ordered to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The question whether the case of the appellant was governed by Article 311 of the Constitution stands concluded by two decisions of this court. In Jagatrai Mahinchand Ajwani v. Union of India, C.A. 1185 of 1965 dated 6.2.1967 it was held that an Engineer in the Military Service who was drawing his salary from the Defence Estimates could not claim the protection of Article 311(2) of the Constitution. In that case also the appellant was found to have held a post connected with Defence as in the present case. This decision was followed in S. P. Behl v. Union of India, C.A. 1918 of 1966 dated 8.3.1968. Both these decisions fully cover the case of the appellant so far as the applicability of Article 311 is concerned. Now the only question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions 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 or posts in connection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of persons appointed, to such services and posts under the Union and the State. These Rules and the exercise of power conferred on the delegate must be subject to Article 310. The result is that Article 309 cannot impair or affect the pleasure of the President or the Governor therein specified. Article 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the decision in Challappan s case (Divisional Personnel Officer, 5.Rly. Y. I.R. Challappan, [1976] 1 SCR 783) which had taken a contrary view. has been expressly overruled on the ground that rules cannot do what the second proviso to Article 311(2) denies. By virtue of Article 311(2), no civil servant can be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being beard in respect of the charges. Article 311(2) thus imposes a letter on the power of the President or the Governor to determine the tenure of a civil servant by the exercise of pleasure. Tulsi Ram case concerned with the exclusion of Article 311(2) by reason of second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt. The appellants seem to have admitted before the High Court that the 1965 Rules would be applicable to the respondent. Relying on this admission it was argued before us that the decree under appeal should not be set aside. The poverty of the respondent and the long drawn litigation by which the respondent has suffered immeasurably were also high-lighted. We gave our anxious consideration to this part of the submission. It is true that the parties appear to have proceeded before the High Court that the 1965 Rules would be attracted to the case of respondent. It might be on a wrong assumption of law. The appellants cannot he estopped to contend to the contrary. They are not bound by such wrong assumption of law. Nor it could be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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