TMI Blog1963 (12) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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, the 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pensionable 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 complia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 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 thereunder, every person in the civil service of the Cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 311. 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. 311. 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 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 conn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice 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 simpliciter 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(A. 1. R. 1964 S. C. 449) State of Bihar v. Gopi Kishore' Prasad([196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enure, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pleas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 adopt that int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makes it necessary for us to examine the said cases very carefully. In Satish Chandra Anand v. The Union of India ([1953] S.C.R. 655), this Court was dealing with the case of a person who had been employed by the Government of India on a five-year contract in the Resettlement and Employment Directorate of the Ministry of Labour. When his contract was due to expire, a new offer was made to him to continue him in service in his post temporarily for the period of the Resettlement and Employment Organization on the condition that he would be governed by the Central Civil Services (Temporary Service) Rules, 1949. The relevant rule in that behalf authorised the termination of the contract on either side by one month's notice. Subsequently, his services were terminated after giving him one month's notice. He challenged the validity of the said order, but did not succeed for the reason that neither Art. 14 nor Art. 16 on which he relied really applied. This Court held that it is competent to the State to enter into contracts of temporary employment subject to the term that the contract would be terminated on one month's notice on either side. Such a contract was not inconsisten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eye of law as a punishment. It appears that in dealing with the point, the attention of the Court was drawn to Rule 49 of the Civil Services (Classification, Control and Appeal) Rules, and presumably the explanation termination of his services amounted to a discharge or not. In that connection, reference was made to Rules 1504 and 1505 and it was held that the conduct of the parties showed that the termination of the servant's services was not more than a discharge in terms of the agreement. This case again is of no assistance. That takes us to the decision in the case of Shyam Lal v. The State of U.P. and the Union of India([1955] 1 S.C.R. 26) Shyam Lal's services were terminated under Art. 465-A of the Civil Service Regulations and Note I appended thereto. Shyam Lal alleged that his compulsory retirement offended the provisions of Art. 311(2) on the ground that compulsory retirement was in substance removal from service. This Court considered the scheme of the relevant Rule and held that compulsory retirement did not amount to removal within the meaning of Art. 311(2). In dealing with this question, this Court observed that removal was almost synonymous with dismissal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in that case, was not argued before it, and cannot, therefore, be deemed to have been decided by this decision. Then we have a batch of four decisions reported in 1958 which are relevant for our purpose. In Hartwell Prescott Singh v. The Uttar Pradesh Government Ors.([1958] S.C.R. 509) a civil servant held a post in a temporary capacity in the Subordinate Agriculture Service, Uttar Pradesh, and was shown in the gradation list as on probation. He was later appointed with the approval of the Public Service Commission of the United Provinces to officiate in Class II of the said Service. After about 10 years, he was reverted to his original temporary appointment and his services were thereafter terminated under Rule 25(4) of the Subordinate Agriculture Service Rules. Dealing with the said civil servant's objection that the termination of his services contravened Art. 311(2), this Court held that reversion from a temporary post held by a person does not per se amount to reduction in rank. To decide whether the reversion is a reduction in rank, the post held must be of a substantive rank and further it must be established that the order of reversion was by way of penalty. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am Lal Dhingra v. Union of India.( [1958] S.C.R 828) In this case, Das C.J. who spoke for the Bench considered comprehensively the scope and effect of the relevant constitutional provisions, service rules and their impact on the question as to whether reversion of Dhingra offended the provisions of Art. 311(2). Dhingra was appointed as a Signaller in 1924 and promoted to the post of Chief Controller in 1950. Both these posts were in Class III Service. In 1951, he was appointed to officiate in Class 11 Service as Asstt. Superintendent, Railway Telegraphs. On certain adverse remarks having been made against him, he was reverted as a subordinate till he made good the short-comings. Then, Dhingra made a representation. This was followed by a notice issued by the General Manager reverting him to Class III appointment. It was this order of reversion which was challenged by Dhingra by a writ petition. It would thus be seen that the point with which the Court was directly concerned was whether the reversion of an officiating officer to his permanent post constituted reduction in rank or removal under Art. 311(2). The decision of this question was somewhat complicated by the fact that certa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not reduction within the meaning of Art. 311(2). All those points have been considered and decided and so far as the temporary servants probationers, or contractual servants are concerned, they are no longer in doubt. In regard to permanent servants, the learned Chief Justice has made some observations which it is now necessary to consider very carefully. The appointment of a government servant to a permanent post, observed the learned C.J., may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a lien on the post. (p. 841) On the same subject, the learned C.J has later added that in the absence of any special contract, the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service, or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we have already referred, and addition of these two Clauses apparently is due to the fact that the learned C.J. considered Rule 49 and the explanations attached thereto and brought them into the discussion of a permanent servant, and that, we venture to think is not strictly correct. As we have already seen Explanation No. 1 to R. 49 is confined to the through categories of officers specified by it in its clauses (a) (b) and (c), and it has no relevance or application to the cases of permanent servants. Similarly, the same statement is repeated with the observation as already stated, if the servant has got a right to continue in the post, then, unless ,the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Art. 31 1, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. (p. 862). With respect, we wish to make the same comment about this statement whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted for reasons of national security under s. 3 of the Railway Services (Safe guarding of National Security) Rules, 1949.It appears that in this case, Balakotaiah who challenged the order terminating his services before the High Court of Nagpur, failed because the High Court held that the said order was justified under Rule 148(3) of the Railway Rules. In his appeal before this Court, it was urged on his behalf that the High Court was in error in sustaining the impugned order under the said Rule when the Union of India had not attempted to rely on the said Rule, and the impugned order did not purport to have been passed under it. The argument was that the impugned order had been passed under R. 3 of the Security Rules and the High Court should have considered the matter by reference to the said Rule and not to R. 148(3). This plea was upheld by this Court, and so, Balakotaiah's challenge to the validity of the impugned order was examined by reference to security rule 3. The scheme of the relevant Security Rules was then considered by this Court and it was held that the said Rules did not contravene either Art. 14 or Art. 19(1)(c) of the Constitution as contended by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on that question as Mr. Ganapathy Iyer is willing that the validity of the orders in question might be determined on the footing that they were passed under R. 3 of the Security Rules without reference to R. 148. That renders it necessary to decide whether the Security Rules are unconstitutional as contended by the appellant. It would thus be noticed that having upheld the contention of the appellant Balakotaiah that the High Court was in error in referring to and relying upon R. 148(3) for the purpose of sustaining the impugned order terminating his services, this Court had naturally no occasion to consider the validity, the effect or the applicability of the said Rule to the case before it, and so, the attention of the Court centered round the question as to whether the relevant security rule was valid and whether it justified the order passed against the appellant. In dealing with this aspect of the matter, this Court no doubt came to the conclusion that the termination of Balakotaiah's services under R. 3 did not amount to his removal or dismissal; but since no argument was urged before the Court in respect of R. 148(3), the reference to the said Rule made by the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t R. 278 applied to the case, And so, the preliminary objection against the applicability of the Rule was rejected. Dealing with the main contention raised before this Court that the compulsory retirement of Dalip Singh was removal from service within the meaning of Art. 311(2), this Court applied the tests laid down in the case of Shyam Lal((1955] 1 S.C.R. 26) and Saubhagchand Doshi(2) and held that the said retirement did not amount to removal. Dalip Singh had not lost the benefit which he earned and though considerations of alleged misconduct or inefficiency may have weighed with the Government in compulsorily retiring him that did not affect the character of the order;in fact full pension had been paid to the officer, and so, it was held that the order of retirement is clearly not by way of punishment. At the end of this judgment, this Court added that the observations made in the case of Doshi(2) which we have already cited, should not be read as laying down the law that retirement under R. 278 would be invalid for the reason that a minimum period of service had not been prescribed before the said Rule could be enforced against the civil servant. It would be recalled that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders of compulsory retirement so far as it is covered by the said decisions must be deemed to be concluded. Our conclusion, therefore, is that rules 148(3) and 149(3) which permit the termination of a permanent railway servant's services in the manner provided by them, are invalid because the termination of services which the said Rules authorise is removal of the said railway permanent servant and it contravenes the constitutional safeguard provided by Art. 311(2). After this Court pronounced its decision in the case of Shyam Lal([1955] 1 S.C.R. 26) the question about the validity of Rule 148(3) has been considered by several High Courts and it must be conceded that with the exception of two decisions of the Calcutta High Court in Union of India v. Someswar Banerjee(A.I.R. 1954 Cal. 399) and Fakir Chandra Chiki v. S. Chakravarti Ors(A.I.R. 1954 Cal. 566) which have held that R. 1709 and R. 148(3) of the Railway Rules are respectively invalid, the consensus of judicial opinion is in favour of the contention raised by the learned Add1. Solicitor-General. These decision have held that R. 148(3) is constitutionally valid (vide Biswanath Singh v. District Traffic Supdt., N.E Rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or discriminatory treatment to be meted out to persons or things similarly situated; and in support of this point, reliance is placed on the decision of this Court in Jyoti Pershad v. The Administrator for the Union Territory of Delhi([1962] 2 S.C.R. 125 at P. 137). Such a result, it is said, would inevitably follow where the rule vests a discretion in an authority as an executive officer and does not lay down any policy and fails to disclose any tangible, intelligible, or rational purpose which the power conferred by it is intended to serve. On the other hand, the Addl. Solicitor-General has contended that the very purpose of the Rule gives guidance to the appropriate authority exercising its power under it; in exercising the said power the appropriate authority will have to take into account all the relevant circumstances in regard to the nature and quality of the work of the railway servant in question and will have to decide whether there are circumstances which require that the services of the said servant should be terminated. In dealing with such a question, it is plain that the appropriate authority would naturally have regard for consideration of public interest and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Railway Administration or the Union of India afforded no material on which the framing of the Rule only in respect of one sector of public service can be -justified. We appreciate the argument that the nature of services rendered by employees in different sectors of public service may differ and the terms and conditions governing employment in all public sectors may not necessarily be the same or uniform; but in regard to the question of terminating the services of a civil servant after serving him with a notice for a specified period, we are unable to see how the Railways can be regarded as constituting a separate and distinct class by reference to which the impugned Rule can be justified in the light of Art. 14. If there is any rational connection between the making of such a Rule and the object intended to be achieved by it, that connection would clearly be in existence in several other sectors of public service. What has happened is that a provision like R. 148(3) pr R. 149(3) was first made by the Railway Companies when employment with the Railways was a purely commercial matter governed by the ordinary rules of contract. After the Railways were taken over by the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercised by him only in the manner prescribed by the Constitution. In the context, it would be clear that this latter observation is not intended to lay down that a law cannot be made under Art. 309 or a Rule cannot be framed under the proviso to the said Article prescribing the procedure by which, and the authority by whom, the said pleasure can be exercised. This observation which is mentioned as proposition number (2) must be read along with the subsequent propositions specified as (3), (4), (5) (6). The only point made is that whatever is done under Art. 309 must be subject to the pleasure prescribed by Art. 310. Naidu J. was, therefore, in error in holding that the majority decision of this Court in the case of Babu Ram Upadhya([1961] 2 S.C.R. 679) supported his broad and unqualified conclusion that R. 149(3) was invalid for the sole reason that the power to terminate the services had been delegated to the Railway Administration. In the result, the four appeals in the first group succeed and are allowed. The writ petitions filed by the four appellants in the three High Courts are granted and orders directed to be issued in terms of the prayers made by them. The appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al tenor of the expressions used therein and then to scrutinize whether any of my conclusions would be in conflict with any of the decisions of this Court. At the outset I must make it clear that I propose to confine my discussion only to the question of termination of services of a permanent civil servant. None of the observations I may make is intended to have any bearing on the question of termination of the services of other categories of servants. As the argument of the learned Additional Solicitor-General is based upon the doctrine of pleasure, it would be convenient at the outset to ascertain the precise scope of the doctrine in the context of the Indian Constitution. Article 309 is subject to the provisions of the Constitution and, therefore, is subject to Art. 310 thereof Article 311 imposes two limitations on the doctrine of pleasure declared in Art. 310. The gist of the said provisions is this: Under Art. 309 of the Constitution 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 any State; and until provision in that behalf is made, the Pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to a person must be given to him. But neither of the two Acts empowered the appropriate Legislature to make a law abolishing or amending the said doctrine. The Constitution of India practically incorporated the provisions of s. 240 and s. 241 of the Government of India Act, 1935, in Arts. 309 and 310. The English doctrine has been enlarged in one direction and restricted in another: while Parliament has no power to deprive the President of his pleasure, the said pleasure is made subject to two limitations embodied in Art. 311. The English concept is considerably modified to suit the conditions of our country. It is, therefore, not correct to say that Art. 311 is not a limitation on the power of the President to terminate the services of a Union civil servant at his pleasure. To accept the argument that the relevant expression in Art. 311 shall be so construed as to give full sway to the doctrine is to ignore the limitations on that doctrine. Both Art. 310 and Art. 311 shall be read together and, if so read, it is manifest that the said doctrine is subject to the said two conditions. What is the scope of the relevant words, dismissed and removed' in Art. 311 of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be entitled to a reasonable opportunity whereas an honest Government servant could be dismissed without any such protection. In one sense the conduct of a party may be relevant to punishment; ordinarily punishment is meted out for misconduct, and if there is no misconduct there could not be punishment. Punishment is, therefore, correlated to misconduct, both in its positive and negative aspects. That is to say punishment could be sustained if there was misconduct and could not be meted out if there was no misconduct. Reasonable opportunity given to a Government servant enables him to establish that he does not deserve the punishment, because he has not been guilty of misconduct. That apart, a Government servant may be removed or dismissed for many other reasons, such as retrenchment, abolition of post, compulsory retirement and others. If an opportunity is given to a Government servant to show cause against the proposed action, he may plead and establish that either there was no genuine retrenchment or abolition of posts or that others should go before him. Now let me see whether the history of this constitutional provision countenances any such limitation on the meaning of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or dismissal within the meaning of this rule or of rule 55. The explanation makes it clear that the three specified categories of termination covered by the explanation would amount to dismissal or removal but for the explanation. That is to say, the expression termination is synonymous with the term dismissal or removal . Rule 55 of the Rules provided a machinery for dismissing or removing or reducing in rank a Government servant; he should be given thereunder an adequate opportunity to defend himself. Then came the Government of India Act, 1935. In s. 240 thereof, the expression used was dismissed and that term, in the context of the exercise of His Majesty's pleasure, could have meant only termination of services, though in view of the explanation to r. 49 of the Rules quoted above, the three specified categories of termination mentioned in the explanation might, by construction, be excluded from the natural meaning of the word dismissal . Then we come to Art. 311 of the Constitution, which with certain modifications incorporated the provisions of s. 240 of the Government of India Act, 1935. It introduced the expression removed in addition to the word dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Art. 311(2) of the Constitution, particularly with reference to the meaning of the expressions dismissed , removed or reduced in rank found therein. A careful reading of the judgment shows that this Court has heavily relied upon r. 49 of the Civil Services (Classification, Control and Appeal) Rules, and its explanation, and attempted to give a legal basis for the said provisions. On that basis, having considered the different aspects of the problem, the Court has laid down the following two tests at p. 863, to ascertain whether a person is dismissed or removed within the meaning of Art. 311 of the Constitution; (1) Whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore reference to i.e., loss of pay and allowances, loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion If an officer had a right to a post or rank and if the termination of his services deprived him of that right the said termination would be dismissal or removal as punishment. So too, if the termination had the effect of the officer being visited with evil consequences t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. The following observation further pinpoints the principle; One test for determining whether the termination of the service of a government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. This decision, therefore, clearly lays down, without any ambiguity, that if a person has a right to hold office under the service rules or under a contract the termination of his services would attract Art 311 of the Constitution. It also lays down that a person holding a substantive lien on a permanent post has a right to such office. It does not say, expressly or by necessary implication, that even if a person is deprived of such a right, it will not be punishment unless it is inflicted for misconduct in the manner prescribed by the service rules. Learned Additional Solicitor-General further relied upon the decisions of this Court holding that a rule empower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilway Service who, in the opinion of the competent authority is engaged in or is reasonably suspected to be engaged in subversive activities, or is associated with others in subversive activities in such manner as to raise doubts about his reliability, may be compulsorily retired from service, or have his service terminated by the competent authority after he has been given due notice or pay in lieu of such notice in accordance with the terms of his service agreement: Provided that a member of the Railway Service shall not be retired or have his service so terminated unless the competent authority is satisfied that his retention in public service is prejudicial to national security, and unless, where the competent authority is the Head of a Department, the prior approval of the Governor-General has been obtained. In Union of India v. Jeewan Ram(A.I.R. 1958 S. C. 905) this Court had to consider sub-rr. (3) and (4) of r. 148 of the Indian Railway Establishment Code, Vol. 1. The rule which was under scrutiny in Dalip Singh v. The State Punjab([1961] 1 S.C.R. 8) was r. 278 of the Patiala State Regulations, which read: For all classes of pensions the person who desires to obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore on the existence of a rule of compulsory retirement than on the character of the termination itself. But this reservation was not accepted by the Court in Dalip Singh's case([1961] 1 S. C. R. 88), that is to say, the emphasis is shifted to the existence of a rule of termination detracting from the permanency of the post. Pausing here a moment, I ask myself the question whether these decisions can be reconciled with the aforesaid principles laid down in Dhingra's case([1958] S.C.R. 828). In Dhingra's case this Court held that a termination of the services of a Government servant, who has substantive lien on a permanent post, that is to say a title to his office, is dismissal or removal within the meaning of Art. 311(2) of the Constitution. In the aforesaid three decisions the Government servant concerned had substantive lien on a permanent post, but he was compulsorily retired before the age of superannuation depriving him of his title to the post. it is neither the phraseology used in respect of 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bad or none at all. The following principles emerge from the aforesaid discussion. A title to an office must be distinguished from the mode of its termination. It a person has title to an office, 'he will continue to have it till he is dismissed or removed therefrom. Terms of statutory rules may provide for conferment of a title to an office and also-for the mode of terminating it. If under such rules a person acquires title to an office, whatever mode of termination is prescribed, whatever phraseology is used to describe it, the termination is neither more nor less than a dismissal or removal from service; and that situation 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 arbitrary and summary dismissal. It follows that Government cannot by rule evade the provisions of the said Article. The parties cannot also contract themselves out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posts are divided as permanent, officiating, temporary and for definite periods. Rule 2003 (14) defines lien to mean th 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. Under r. 2006, Unless in any case it be otherwise provided in these Rules, a railway servant. on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post . Under r. 2009, A railway servant's lien on a post may, in no circumstances, be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post. Rule 2042 provides that the pay and allowances of a railway servant who is removed or dismissed from service ceases from the date of the order of removal or dismissal. Rule 2046, under the heading Compulsory Retirement , fixes the age of superannuation for different categories of service. These rules clearly lay down that a. railway servant on a substantive appointment to a permanent post acquires a lien on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enes the provisions of Art 311(2) of the Constitution; secondly, it is contended that the Rule violates Art. 14 of the Constitution It will be necessary to examine these two grounds separately. Is the termination as provided for in the above provision, in Rule 148 (3) 'removal' or 'dismissal within the meaning of Art. 311(2) of the Constitution? That is the question that falls to be answered for deciding the first grounds. To answer this against we have to determine first the connotation of the two words 'removal' and 'dismissal' as used in Art. 311(2). In my opinion, this matter is completely covered by numerous decisions of this Court. Before turning to the decisions however it will be convenient to examine the matter in the context in which Art. 311 (2) appears in the Constitution and also the historical background of the protection afforded thereby. For this purpose it is necessary first to consider the three Articles of the Constitution, viz., Arts. 309, 310 and 311. They are in these words: 309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Provided that this clause shall not apply (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; (b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or (c) where the President or Governor or Rajpramukh, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity. (3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final. It has to be noticed that both Articles 309 and 310 are subject to Art. 31 1. In other words, if any rule is made under Art. 309 as regards the condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary at all because of the resignation. Take again the case of a servant who has been appointed to an office for a period of three years. When the three-year period ends he is asked to go. There is termination of service. But nobody would said that the superior officer by asking him to go at the end of the period had dismissed him or removed him from service. The real question however is not so much as what in common parlance would be understood to be the dismissal or removal but what the Constitution intended by these words. In this connection it will be helpful to examine the use of the words dismissal and removal in the earlier Constitution Acts. The Charter Act of 1793 mentions in s. 36 that nothing in this Act contained shall extend, or be construed to extend to preclude or take away the power of the Court of Directors of the said Company from removing or recalling any of the officers or servants of the said Company, but that the said Court shall and may at all times have full liberty , to remove, recall, or dismiss any of such officers or servants, at their will and pleasure in the like manner as if this Act had not been passed Section 35 made it lawful to and for the King& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants at their will and pleasure. It is clear that by these provisions the British Parliament was emphasizing the right of the Court of Directors of the Company to remove, or dismiss such servants whose services would not have been terminable under the ordinary law of master and servant. It is also legitimate to read the provisions making it lawful for the King of England to remove or dismiss the Company's servants (s). 35 in the Charter Act of 1793 and s. 75 of the Charter Act of 1833) as intended to terminate the service of the same class of servants, viz., those whose services were not terminable under the ordinary law of the land. In the light of this legislative history, the words removal and dismissal in s. 38 :of the Act of 1858 and thereafter in the Government of India Act, 1915 (Section 95 and s. 96B ) cannot but be read also to mean termination of service of such servants only who would not have been liable to termination under the ordinary law of master and servant. In other words, only those servants who by their terms and conditions of their appointment to the service bad acquired a right to continue for a particular period which could not under the ordinary law be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in the Government of India Act, 1935 as regards removal or dismissal of persons in the civil service of the Crown it had before it not only the history of these words-removal and dismissal--in the Charter Act 1793, Charter Act of 1833, Government of India Act, 1858, the Government of India Act, 1915 but also these Rules framed by the Secretary of State in Council. It is reasonable to think therefore that in making these special provisions in the 1935 Act the British Parliament proceeded on the basis that only terminations of service by way of punishment which could not have been inflicted under the ordinary law of master and servant would come within these words--removal and dismissal. Primarily such terminations by way of punishment could be made only in respect of those servants who had not acquired a right to continue in service. It might however be said that even where there was no such right and termination could have been effected therefore under the ordinary law of contract between master and servant any termination which carried with it loss of benefits already acquired, say, forfeiture of pension or of provident fund was also contemplated to come within these word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired, and in the absence of a contract express or implied or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with Art. 311(2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant's rights and brings abo ut a pre mature end of his employment. Again, where a person is appointed to a temporary post for a fixed term of say five years his service cannot, in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with Art. 311(2). The premature termination of the service of a servant so appointed will prima facie be a dismissal or removal from service by way of punishment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the accrued benefit and though in a wide sense the officer might consider himself punished by the deprivation of the chance of serving and getting his pay till he attains the age of superannuation and thereafter to get an enhanced pension, there is clearly a distinction between the loss of benefit already earned and the loss of prospect of earning something more; where the officer did not lose the benefit already earned the same was not dismissal or removal. At page 42 of the Report the Court said: Finally, Rule 49 of the Civil Service (Classification, Control and Appeal) Rules clearly indicates that dismissal or removal is a punishment. This is imposed on an officer as a penalty It involves loss of benefit already earned. In Doshi's Case([1958] S.C.R. 571) the Court had to consider an order of compulsory retirement made under Ruled 165A of the Bombay Civil Service Rules as amended by the Saurashtra Government which gave the Government an absolute right to retire any government servant after he had completed 25 years of qualifying service or 50 years of age whatever his service without giving any reason. It was held that such an order was not 'removal' or & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of dismissal or removal was reaffirmed by this Court in Balakotich v. The Union of India (3 ). Reaffirming also the criteria indicated in Dhingar's Case(1958] S. C. R. 829) as to what amounted to punishment for the purpose of Art. 311, Venkatarama Aiyar J. speaking for the Court observed: The question as to what would amount to punishment for the purposes of Art. 311 was also fully considered in Parshotam Lal Dhingra's. Case([1958] S. C. R. 829) It was therein held that if a person had a right to continue in office either under the service rules or under a special agreement, a premature termination of his service would result in loss of benefits already earned and accrued, that would also be punishment. Proceeding to apply this proposition to the facts of the case before it the Court said: In the present case, the terms of employment provide for the services being terminated on a proper notice, and so, no question of premature termination arises. Rule 7 of the Security Rules preserves the rights of the employee to all the benefits of pension, gratuities and the like, to which they would be entitled under the rules. Thus, there is no forfeiture of benefits alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oval. An observation in Doshi's Case(1) which might appear to indicate otherwise was not followed it being pointed out that in Doshi's Case this matter did not fall to be considered. Under Rule 278 he State reserved to itself the right to retire any of its employees on pension on political or on other reasons. It did not mention any particular age for retirement under this Rule. Care was taken in this case to mention that if the rule would result in loss of pension already earned, the termination would amount to removal or dismissal. It is thus clear both on principle and on authority that the words removal and dismissal in Art. 311 of the Constitution mean and include only those terminations of service, where a servant had acquired a right to continue in the post on the basis of terms and conditions of service, and such other terminations, where though there were no such right, the order has resulted in loss of accrued benefits; and that terminations of service which did not satisfy either of these two tests do not come within any of these words. Applying these tests to the termination of service under the provision of Rule 148 (3) of the Railway Code that the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r rule, limiting the servant's right to continue in' service. It is as much a condition of service as Rule 2046 and in deciding the nature and extent of the right of a railway servant to whom Rule 148(3) applies to continue in service, Rule 148(3) is of as much importance as Rule 2046. A railway servant to whom Rule 148(3) applies has two limitations put on his right to continue-(1) termination on attaining a certain age and (2) termination on service of a notice under Rule 148(3). Where the service is terminated by the order of retirement under Rule 2046, the termination is of a service where the servant has not the right to continue. So, it is not 'removal' or 'dismissal'. Equally clearly and for the same reason, when the service is terminated by notice under Rule 148(3), the termination is not removal' or 'dismissal'. It has not been suggested that the second test of loss of accrued benefits is satisfied in terminations under Rule 148(3). If in any particular instance the order of termination entails loss of accrued benefits that will happen not because of anything in R. 148(3) but for some extraneous action. Where that happens it will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qually applied by taking action in one case and not taking it in the other. In the absence of any guiding principle in the exercise of the discretion by the authority the Rule has therefore to be struck down as contravening the requirements of Art. 14 of the Constitution. It is unnecessary for me to consider the other contention as mentioned above, which has been urged in support of this ground. My conclusion therefore is that though the provisions of Rule 148(3) in respect of certain non-pensionable railway servants that their services shall be liable to termination on notice for the period prescribed therein does not contravene Art. 311(2) of the Constitution, it contravenes Art. 14 of the Constitution and consequently is void. I would accordingly allow with costs the four appeals (C.A. Nos. 711-713/62 and C.A. No. 714/62) set aside the order of the High Court and order that appropriate writs be issued in favour of the appellant as prayed for. The other three appeals (C.A. Nos. 837-839 of 1963) challenge the decision of the Assam High Court in favour of three railway servants whose services had been terminated under Rule 149 of the Railway Code, that these terminations were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of services and posts in connection with the affairs of the Union or a State (Art. 309), and until such legislation is enacted,-it may be observed that the Union Parliament has not enacted any general legislation governing public servants employed by the Union-the President or the Governor or such person as may be directed in that behalf may make rules regulating the recruitment and conditions of service of persons appointed to such services and posts, and the rules so made by the President or the Governor shall have effect, subject to the provisions of any such Acts. The power of the President or the Governor under Art. 310 (which is wholly independent of the power conferred by the rules or legislation under Art. 309), and the power conferred by legislation enacted or rules made or continued by virtue of Art. 309 are subject to certain restrictions contained in Arts. 311 314. Article 314 grants certain special protections to members appointed by the Secretary of State or the Secretary of State in Council to a civil service of the Crown in India and who continue on and after the commencement of the Constitution to serve under the Government of India or a State. Article 311 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removal, for, dismissal or removal according to the rules implies determination as a disciplinary measure. The appellants in appeals Nos. 711 to 714 of 1962 are public servants employed in the Railways under the management of the Government of India and were governed by the rules made under Art. 309, and their services were terminated in purported exercise of powers under Rule 148(3). Rule 148, the validity of which is challenged by the appellants in these appeals, was originally framed in 1951 in exercise of the authority conferred by Art. 309, and was later modified so as. to exclude from its operation determination of employment operating as dismissal or removal as a disciplinary measure. The first clause deals with a temporary railway servant who holds no lien on a permanent post under the Union. Such a person need be given no notice of termination of employment, if the termination is due to the expiry of sanction to the post, or of the officiating vacancy or is due to mental or physical incapacity, or where it amounts to removal or dismissal as a disciplinary measure. Clause (2) deals with apprentices. Clause (3) deals with (non-pensionable) railway servants, who are substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 148 is impugned by the appellants on two principal grounds: (1) that it is inconsistent with the protection which is guaranteed to all public servants by Art. 311(2); and (2) that it contravenes the fundamental freedom under Art. 14 of the Constitution in that certain classes of railway servants are selected for special prejudicial treatment when no such conditions of service are applicable in any other public employment and that in any event an arbitrary power is conferred upon the authority competent in that behalf under the rules to terminate employment without any principle to guide him. Under the first head it is urged that termination by ,.notice of employment of non-pensionable servants under Rule 148(3) being removal from service, in the absence of rules prescribing machinery for affording a reasonable opportunity of showing cause against the action proposed to be taken in regard to such employees, the Rule infringes the constitutional guarantee under Art. 311 and is void. This plea assumes that every termination of employment by notice under Rule 148(3) amounts to removal. But on the plain text of cl. (3) it is evident that the right to determine employment by noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia Company were liable to be removed at the pleasure of the King of England: see s. 35 Charter Act 1793 (33 Geo. III Ch. 2): and 74 Charter Act 1833 (3 4 will IV Ch. 85). These provisions however did not take away the power of the Court of Directors to remove or dismiss any of its officers or servants not appointed by the Crown in England. The same tenure of service prevailed after the British Crown took over the governance of India, the power to make regulations in relation to appointments and admission to services and matters connected therewith being vested in the Secretary of State in Council: s. 37 Government of India Act 1858 (21 22 Vict. Ch. 106). For the first time under the Government of India Act, 1919 (9 10 Geo. V. Ch. 101) some protection was conferred upon the civil servants. By the first clause of s. 96-B the tenure of office of every employee under the civil service of the Crown was during pleasure of His Majesty, but dismissal from service by an authority subordinate to that by which the officer was appointed was prohibited. The power of the Secretary of State for India in Council to make rules regulating classification of civil services, method of recruitme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce after the Government of India Act, 1935, was brought into operation. Even after the Constitution was brought into force, the rules continued to remain in operation till 1955, when a new set of rules were promulgated, but thereby in Rules 49 55 no substantial variation was made It is clear that, under the scheme of rules governing the employment of civil servants which obtained prior to the Constitution dismissal. or removal had acquired a definite connotation, and when the Constitution makers adopted the scheme of protection of public servants in the same form in which it prevailed earlier, an intention to attribute to the expression dismissed and removed the same content may be assumed in the absence of any expressed intention to the contrary. Since the constitutional guarantee of protection to public servants is couched in the same terms, the expression removal in the Service Rules having the same meaning as dismissal i.e., determination of employment as a disciplinary measure for misconduct, subject to the slight variation that an employee removed from service is not disqualified from future employment in public service, whereas a dismissed employee is so disqualifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on involves determination of employment as a disciplinary measure-that is termination of employment on some ground personal to the officer concerned, such as incapacity or imputation of charge against him which renders it inexpedient undesirable that he should continue in public employment: Satish Chandra Anand v. Union of India([1953] S.C.R. 655) Shyam Lal v. State of Uttar Pradesh The Union of India((1955] 1 S.C.R); and Parshotam Lal Dhingra v. Union of India ([1958] S.C.R. 828). In considering whether termination of employment of a. public servant amounts to dismissal or removal, the primary test settled by a uniform course of authority is: does the termination amount to punishment of the public servant, i.e., has it the effect of depriving the public servant concerned of the right which he has already acquired as a public servant, or does it involve evil consequences such as forfeiture of pay or allowances or other benefits which by the rules governing the tenure he has earned, or impute a stigma? A public servant appointed substantively to a post normally acquires a right to hold the post until he attains the age of superannuation, and in the absence of a contract or serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution must be complied with. Under the Indian Railway Establishment Code, Vol. 11, lien is defined in Rule 2003(14) 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. Evidently lien is the title which the railway servant has to a post, and a public servant appointed substantively must always till he is superannuated have lien on a specific post. On substantive promotion his lien would attach to another post, his earlier lien being superseded. While a railway servant appointed to another post substantively must have a lien to that post, it cannot be assumed that his lien continues to attach to any particular post. The lien is however subject to the rules: it does not in any manner confer a right to hold a post indefinitely. Counsel for the appellants contended that all the appellants in this group of appeals were permanent employees, and even superannuation did not put an end to employment, since under the rules the superannuated employees had a right to pension. it is impossible to hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot undoubtedly provide for dismissal or removal otherwise than in a manner consistent with Art. 311. Nor can an authority acting under the rules validly terminate an appointment to a post in a manner contrary to the Constitution or the rules. Article 311 however covers only a part of the field governing the tenure of employment and in substance provides for a procedure for exercising the right to determine employment in certain specified classes of cases. To hold that this determination of employment must in all cases, whatever may be the source or the power in the exercise of which it is determined, is to attribute to it a more exalted effect than is warranted by the scheme of the Constitution disclosed by Arts. 309 and 310. The view which I have expressed is consistent with an overwhelming body of uniform authority dealing with different classes of cases in this Court, and we are asked to ignore the principle derived from that body of authority not on the ground of any demonstrable error but on the sole ground of a possible misuse of the powers entrusted to the Railway Administration and that was, as I understood, practically the only argument advanced at the Bar to justify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and entered into the contract were bound by them, even as the State was bound. This was a case of a premature termination of a contractual employment in exercise of a power reserved by Rules. The view expressed in Satish Chandra Anand's case([1953 S.C.R. 6 5) was approved in Parshotam Lal Dhingra's case(2) . Several cases dealing with termination of employment of temporary employees or employees on probation have since arisen, and it has consistently been held that mere termination of employment of these employees not on the ground of any misconduct did not amount to dismissal or removal within the meaning of Art. 311. In Hartwell Prescott Singh v. The Uttar Pradesh Government and others([19581 S. C. R. 509) an order discharging a temporary employee from service by giving him a month's notice as prescribed by Rule 25(4) of the U.P. Subordinate Agriculture Service Rules, by which he was governed, was held not to amount to dismissal or removal within the meaning of Art. 31 1. It was observed in that case that in principle there was no distinction between the termination of service under the terms of a contract and that in accordance with the terms of conditions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain whether he was fit to be confirmed, is not of that nature. In S. Sukhbans Singh v. The State of Punjab([1963] 1 S.C.R. 416) it was held that the protection of Art. 311 is available only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment, and one of the tests for ascertaining whether the termination of service was by way of punishment is whether under the Service Rules, but for such termination, the servant has the right to hold the post. The same view. was expressed in Union Territory, Tripura v. Gopal Chandra Datta([1963] Supp. 1 S.C.R. 266) and in Ranendra Chandra Bannerjee v. The Union of India([1964] 2 S.C.R. 135). Two cases on the other side of the line, which emphasize the distinction between a mere order of discharge of a temporary servant, and an order dismissing a public servant as a disciplinary measure may be noticed. In Madan Gopal v. The State of Punjab and others([1963] 3 S.C.R. 716), this Court pointed out that where the employment of a temporary government servant, even though liable to be terminated by notice of one month without assigning any reason, is not so terminated, and the appointing authority holds an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bay Civil Services (Conduct, Discipline and Appeal) Rules adopted by the State of Saurashtra, subject to amendment, authorising the State Government to compulsorily retire any public servant who had completed 25 years of qualifying service or had attained the age of 50 'years, without giving any reason was not violative of Art. 311(2) of the Constitution, as the order made under Rule 165-A was not one of dismissal or removal. Venkatarama Aiyar, J., observed at p. 579 (obiter as was pointed out in a later case): It should be added that questions of the above character could arise only when the rules fix both an age of superannuation and an age for compulsory retirement and the services of a civil servant are terminated between these two points of time. But where there is no rule fixing the age of compulsory retirement, or if there is one and the servant is retired before the age prescribed therein, then that can be reregistration only as dismissal or removal within Art. 311(2). In P. Balakottaiah v. The Union of India and others(1) an order for compulsory retirement under Rule 3 of the Railway Services (Safeguarding of National Security) Rules, 1949, was challenged as co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f service is not tantamount to the infliction of a punishment and does not attract Art. 311(2), as has also been held by this Court in Shyam Lal v. The State of Uttar Pradesh. In either of the two above-mentioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under r. 52 of the Fundamental Rules. In a still more recent case-Dalip Singh v. State of Punjab(1) it was held by this Court that an order of compulsory retirement of a public servant for administrative reasons under R. 278 of the Patiala State Regulations which Regulations did not fix the minimum age or length of service after which an order of compulsory retirement could be made, was not one of dismissal or removal from service within the meaning of Art. 311(2) of the Constitution, because retirement under a Service Rule which provided for compulsory retirement at any age irrespective of the length of service put in, cannot necessarily be regarded as dismissal or removal within the meaning of Art. 311, and the observations (hereinbefore quoted) made by Venkatarama Aiyar, J., in Saubhag chand Doshi's case(2) were for the purposes of deciding that case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which fell to be considered in Dalip Singli's case (3) was not invalid, if Rule 5(a) of the Central Government Services (Temporary Service) Rules, 1949, which fell to be considered in Satish Chandra Anand's case (4) was also not invalid, it is difficult to appreciate any ground either of logic or of law on which the vice of invalidity as infringing Art. 311(2) may be attributed to Rule 148(3). The termination of employment under Rule 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 the post is necessarily circumscribed by the conditions of employment which include Rule 148(3) and does not cast any stigma upon him. In the result I am unable to agree that Rule 148(3) was invalid as infringing the guarantee of constitutional protection under Art. 311(2). In appeals Nos. 837-839 of 1963 the question as to the validity of the Rule 149(3) falls to be determined. That Rule was substituted for the original Rule 148(3) some time in year 1959. Rule 149 deals, by its first clause, with temporary railway servan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id, but because it would expose the public servant concerned to forfeiture, by amendment of the rules which were in existence at the time when he entered service, o rights which he had already acquired. The alternative ground of invalidity that the rule infringes the fundamental right of equal protection of the laws under Art. 14 of the Constitution may now be considered. This ground was set up under two broad heads. (1) There is no other public employment under the Government of India in which conditions similar to these contained in Rule 148(3) or Rule 149(3) exist, and therefore discrimination between public servants employed in Railways and public servants employed in other branches of public undertakings or Administrative Services without any rational basis to support it, infringing the equal protection of laws guaranteed by Art. 14 of the Constitution, results. The argument posed in this form does not appear to have been raised before the High Court and no investigation has been made whether similar conditions of service do or do not exist in other public employments. In any event, employment in the Railways is in a vitally important establishment of the Union in whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned statute: it may be gathered from the surrounding circumstances known to or brought to the notice of the Court. (2) Rules 148(3) and Rule 149(3) are so framed as to lead to discriminatory treatment of Railway servants, because by the exercise of the arbitrary and uncontrolled power thereby conferred, exercise of which is not to be tested by any objective standard, service of any public servant falling within the classes to which they apply may be terminated Conferment of such a power leads to denial of the equal protection of the laws. Rule 148(3 ) as it stood applied only to non-pensionable services and not to pensionable services, and Rule 149(3) applies to all railway servants holding posts pensionable and non-pensionable. In dealing with a similar argument in Satish Chandra Anand's case(1) in the context of termination of employment of a servant employed on a contract for the duration of an Organisation but whose tenure was governed by the Central Civil Services (Temporary Service) Rules, 1949, Bose, J., observed at p. 659: There was no compulsion on the petitioner to enter into the contract he did. He was as free under the law as any other person to accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants protected the appellants in appeals Nos. 711-714 of 1962, and also provided for determination of their employment. The Rule, it is true, does not expressly provide for guidance to the authority exercising the power conferred by Rule 148, 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 is 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 Rule 148, an assumption that the power may be exercised mala fide and on that ground discrimination may be practised is wholly out of place. Because of the absence of specific directions in Rule 148 governing the exercise of authority conferred thereby, 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, the importance of the efficient functioning of the rail transport in the scheme of our public economy, and the status of the authority invested with the exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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