TMI Blog1976 (7) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... d on condition that the appellants will bear the costs of the respondent in any event. The point of law sought to be canvassed before us is: Does the doctrine that a Central Govt. servant holds his post at the pleasure of the President , contained in Article 310 of the Constitution, authorise the passing of an order of termination of services, without assigning any reason whatsoever, of the holder of a post connected with defence ? There is no finding anywhere that the services of the plaintiff respondent were terminated as a measure of punishment for any wrong done by him or for incompetence, although, a perusal of the pleadings would show that the appellants denied the assertions of the plaintiff respondent that he was efficient and entitled to promotions as he had qualified for them by passing certain tests. The Subordinate Judge had awarded only ₹ 25,000-. out of a claim of ₹ 75,000/- made on the ground that, but for illegal termination of the service of the plaintiff-respondent, the-plaintiff would have continued in service upto the age of 60 years and duty promoted instead of being thrown out of service at the age of 41. The plaintiff respondent alleged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be free from any other restrictive operation. In that event, Art. 309 and 310 should be read together, excluding the opening words in the latter Article, namely, Except as expressly provided by this Constitution . Learned Counsel seeks to confine the operation of the opening words in Art. 309 to the provisions of the Constitution which empower other authorities to make rules relating to the conditions of service of certain classes of public servants, namely Arts. 146(2), 148(5) and 229(2). That may be so, but there is no reason why Art. 310 should be excluded therefrom. It follows that while Art. 310 provided for a tenure at pleasure of the President or the Governor, Art. 309 enables the legislature or the executive, as the case may be, to make any law or rule in regard, inter alia, to conditions of service without impinging upon the overriding power recognised under Art. 310 . The Kerala High Court relied on Union of India v. J. N. Sinha Anr., A.I.R. 1971 S.C. 40 to hold that doctrine of office held at the pleasure of the President was subject to rules made under Article 309 of the Constitution, and pointed out that it was held, inter-alia, by a Division Bench of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 Art. 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 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 309 is, therefore, to be read subject to Article 310 . The High Court, after citing the passage set out above, said: We do not understand the above passage as suggesting that Article 310 cannot in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court were not applicable to the facts of the instant case it should have said so giving reasons supporting its point of view. We have perused the Central Civil Service (Classification, Control and Appeal) Rules of 1965, (hereinafter referred to as '1955 Rules') which deal principally with procedure for disciplinary proceedings and penalties and appeals and reviews against orders passed under the rules. There is no rule there dealing with the conditions under which a service such as that of the plaintiff respondent may be terminated. We fail to see any rule made under Article 309 of the Constitution which was violated by the impugned order of termination of service of the plaintiff-respondent. We do not consider ourselves called upon to. decide a question which has really not arisen in the case before us. The 1965 Rules are applicable when disciplinary proceedings are taken. They do not make disciplinary proceedings under the rules incumbent or obligatory whenever the services of a person covered' by these rules are terminated. The obligation to follow the procedure for punishment laid down in the rules flows from the provisions of Article 311 of the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 311 of the Constitution constitute an exception to the doctrine of pleasure contained in Article 310 of the Constitution. But, in the case before us, no question of any disciplinary proceedings has been discussed because it did not arise at all. There is no finding that any punishment was imposed upon the plaintiff-respondent. It may be that mere termination of service, when the plaintiff respondent was holding a permanent post and entitled to continue in service until 60 years of age, may constitute punishment per seven when the termination of service is not meant as a punishment. But, in that event,, there had to be a finding on the rule or order under which the plaintiff was entitled to continue in service. until he reached the age of 60 years. The High Court had cited no rule made under. Article 309 to show that there was any such provision. In P.L. Dhingra v. Union of India A.I.R. 1958 S.C. 36 at 47 Das, CJ., speaking for the majority of a Bench of five judges of this Court, said (at p. 47): It has already been said that where a person is appointed substantively to a permanent post in Government service. The normally acquires a right to hold the post until under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they could be applied if disciplinary proceedings had been taken against him as the holder of a post connected with defence . In other eases of such servants,. where no such disciplinary proceedings are instituted (and none were started against the plaintiff-respondent), the 1965 Rules, governing procedure for. punishments to be imposed, will not apply at all. There is no legal obligation to apply those rules here. The legal obligation to apply them to every case of punishment, flowing from Article 311, is confined to holders of posts covered by Article 311. On this question, we are bound by the decision of a bench of five learned Judges of this Court in Khurana's case (supra). We were asked to import the obligation to apply the procedure prescribed by Article 311 to a case such as the one before us by invoking the aids of Articles 14 and 16. Apart from the fact that these .Articles could not be invoked against a discrimination made by Constitutional provisions, no such case was set up earlier. We cannot permit it at this stage. The only ground on which the respondent had assailed the order of termination of his service was non-compliance of 1965 Rules, which meant& ..... X X X X Extracts X X X X X X X X Extracts X X X X
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