• -- • 5 S.C.R. SUPREME COURT REPORTS 683 MOTI RAM DEKA ETC. l'. GENERAL MANAGER, N.E.F. RAILWAYS, MALIGAON, PANDU, ETC. (With connected appeals) (P.B. GAJENDRAGADKAR, K. SUBBA RAO, K.N. WANCHOO, M. HJDAYATULLAH K.C. DAS GUPTA, J.C. SHAH AND N. RAJAGOPALA AYYANGAR JJ.) Civil Service-Termination of services of a permanent servant- Validity of Rules 148(3) and 149(3) of the Railway Establishment Code vis-a-vis Art. 311(2)-If Rules violate Art. 14-Scope of exer- cise of Pleasure of President-Basis of superannuation-Rule com- pulsory retirement when can be applied-Constitution of India, 1950, Arts. 14, 310, 311(2}--Indian Railway Establishment Code, Vol.
I, Rules 148(3), 149(3). Moti Ram Deka was a peon employed by the North East Fron- tier Railway and Sudhir Kumar Das was a confirmed clerk. The General Manager, North East Frontier Railway, terminated their services under R. 148(3) oflndian Railway Establishment Code, Vol. I. They challenged the termination of their services but their writ petitions were rejected by the Assam High Court and they came to this court by special leave.
Priya Gupta was an Assistant Electrical Foreman in the North Eastern Railway. His services were terminated under R.
148. His writ petition and Letters Patent Appeal challenging termination of his services having been rejected by Allahabad High Court, he came to this Court by special leave . Tirath Ram Lakhanpal was a Guard employed by the Northern Railway. His services were terminated under R.
148.
His writ petition and Letters Patent Appeal were dismissed by Punjab High Court and he came to this court by special leave. S.B. Tewari, Parimal Gupta and Prem Chand Thakur were employed in the North Eastern Frontier Railway. Their services were terminated under R.
149. Their writ petitions challenging termination of their services were accepted by the Assam High Court and Union of India came to this Court after getting a certi- ficate of fitness from the Assam High Court.
The only question involved was the constitutional validity or otherwise of Rules 148(3) and 149(3) of the Indian Railway Establishment Code on the ground that they violated Arts. 14 and 311(2) of Constitution of India. Held: By majority by Gajendragadkar, Wanchoo, Hidaya- tullah, Ayyangar, Subba Rao and Das Gupta JJ.(Shah J. dissenting) 1963 December 5 1963 Moti Ram Deka 684 SUPREME COURT REPORTS [1964] that Rules 148(3) and 149(3) of Indian Railway Establishment Code were invalid.
Per Gajendragadkar, Wanchoo, Hidayatullah and Ayyangar, etc. JJ. v. Rules 148(3) and 149(3) are invalid inasmuch as they ate General inconsistent with the provisions of Arts. 311(2). The termination Manager, N.E.F. of the services of a permanent servant which is authorised by those Railways, rules, is no more and no less than his removal from service and Ma/igaon, hence Art. 311(2) must come into play in respect of such cases.
Pandu, etc. The rule which does not require compliance with the procedure prescribed under Art. 311(2) must be struck down as invalid. A person who substantively holds a permanent post has a right to continue in service, subject to the rules of superannuation and compulsory retirement. If for any other reason that right is invaded and he is asked to leave his service, the termination of his service must inevitably mean the defeat of·his right to continue in service and as such it is in the nature of a penalty and amounts to removal.
In other words, termination of the services of a permanent servant otherwise than on ground of superannuation or compulsory retirement, must per se amount to his removal and if by R. 148(3) or R. 149(3), such a termination is brought about, the rule clearly contravenes Art. 311(2) and must be held to be invalid.' Rules 148(3) and 149(3) contravene Art. 14 of the Constitu- tion. It is difficult to understand on what ground employment by the Railways alone can be said to constitute a class by itself for the purposes of framing the impugned rules.
If considerations of administrative efficiency or exigencies of service justify the making of such a rule, such rules should have been framed in other depart- ments also. The pleasure of the President has lost some of its majesty and power as it is controlled by the provisions of Art.
311. Rules of superannuation are based on considerations of life expectation, mental capacity of civil servants having regard to climatic conditions under which they work and the nature of the work they do.
They are not fixed on any ad hoc basis and do not involve the exercise of any discretion. They apply uniformly to all public servants falling under the category in respect of which they are framed. There can be no analogy between the rule of superannuation and rules 148(3) and 149(3) of the Code. If any rule permits the appropriate authority to retire compul- sorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that rule would be invalid and the so-called retirement ordered under the said rule would amount to removal of the civil servant within the meaning of Art. 311(2). r I • • . 5 S.C.R.
SUPREME COURTREPORTS 685 Where a rule is alleged to violate the constitutional guarantee afforded by Art. 311 (2), the argument of contract between the parties 1963 and its binding character is wholly inappropriate. Moti Ram Deka
Per Subba Rao, J.-Rules 148(3) and 149(3) which confer a etc. power on the appointing authority to remove a permanent servant v. on notice, infringe the constitutional protection guaranteed to General a Government servant under Arts. 14 and 311 ofthe Constitution.
A permanent post and rules such as 148(3) and 149(3) cannot Manager, N.E.F. stand together and the latter must inevitably yield to the former. Railways, It is neither the phraseology nor the nomenclature given to the act of termination of service that is material but the legal effect of the action taken that is decisive in considering the question whether a Government servant is dismissed or not. Whetherthe servi- ces of a permanent Government servant are terminated by giving him 15 day's notice or whether his services are dispensed with before the age of superannuation by way of compulsory retirement under or outside a rule of compulsory retirement, the termination deprives him of his title to the permanent post.
If in the former case it amounts to dismissal, in the latter case, it must be equally so. In both cases, Art. 311 (2) is attracted. Compulsory retirement before age of superannuation is not an incident of tenure. It does not work automatically. It is not conceived in the interest of the employee. It is a mode of terminating his employment at the discretion of the appointing authority. As a matter of fact, whatever the language used in that connection, it is a punishment imposed on him.
It not only destroys his title but also inevitably carries with it a stigma and hence such a termination is dismissal or removal within the meatting of Art.
311. A title to an office must be distinguished from the mode of its termination. If a person has title to an office, he will continue to have it till he is dismissed or removed from there. Terms of statutory ruJe9 may provide for conferment of a title to an office and also for the mode of protecting it.
If under such rules, a person acquires title to an office, whatever mode of termination is prescri- bed and whatever phraseology is used to describe it, the termination is neither more nor less than a dismissal or removal from service and that inevitably attracts the provisions of Art. 311 of the Constitution. The argument that the mode of termination prescri- bed derogates from the title that otherwise would have been conferred on the employee mixes up two clear concepts of conferment of title and the mode of its deprivation.
Article 311 is a constitutional protection given to Government servants, who have title to office, against their arbitrary and summary dismissal. Government cannot by rule evade the provisions of Art.
311. Parties also cannot contract themselves out of the constitutional provision.
Per Das Gupta, J. Rule 148(3) does not contravene Art. 311(2). A railway servant to whom R. 148(3) applied has two Ma/igaon, Pandu, etc. 686 SUPREME COURT REPORTS [1964] limitations put on his right to continue in service, viz., termination on attaining a certain age and termination of service on a notice Moti Ram Deka under R. 148(3).
Where service is terminated by order of retire- etc men! under R. 2046, the termination is of a service where the 1963 · servant has no right to continue and it is not removal or dismissal. v. Likewise when service is terminated by notice under R. 148(3) General that termination is not removal or dismissal. Manager, N.E.F. Railways, Maligaon, Pandu, etc. The words 'removal' and 'dismissal' in Art. 311 mean and include only those terminations of service where a servant has acquired a right to continue in the post on the basis of terms and conditions of service and such other terminations where though there is no such right, the order has resulted in loss of accrued bene- fits.
Terminations of service which do not satisfy either of these two tests do not come within any of these words. Both Arts. 309 and 310 are subject to Art.
311. If any rule is made under Art. 309 as regards conditions of service of a Govern- ment servant in the matter of his dismissal or removal or reduction in rank, it has to comply with the requirements of Art.
311. Before an order dismissing or removing or reducing a Government servant in rank is made by President or Governor in exercise of his pleasure, President or.
Governor has to comply with the requirements of 311(2). Under Art. 310, all servants of the State hold office during the pleasure of the President or Governor as the case may be. That means that the officer has no right to be heard before his services are terminated. Article 311 provides an exception in the case of removal or dismissal. However, R. 148(3) contravenes Art. 14 as it does not give any guidance for exercise of discretion by the authority concerned and hence is invalid.
Per Shah, J.
Rules 148(3) and 149(3) do not infringe Art. 311(2) or Art. 14 of the Constitution. There is neither logic nor law in support of the contention that r. 148(3) contravenes Art. 311(2). The termination of employment under r. 148(3)doesnot involve the public servant concerned in loss of any rightwhichhe has already acquired. It does not amount to loss of a post to which he is entitled· under the terms of his employment because the right to a post is necessarily circumscribed by the conditions of employment which include r. 148(3).
It also does not cast any stigma upon him. ' Mere determination of employment of a public servant, whether he is a temporary employee, a probationer, a contractual appointee or appointed substantively to hold a permanent post, will not attract the provisions of Art. 311(2) unless the determination is imposed as a matter of punishment. A railway servant who has accepted employment on the conditions contained in the rules, cannot after having obtained employment, claim that the conditions which were· offered to him and which he accepted, are not binding upon him.
The sole exception to that rule is in cases where .the •. • ' f • 5 S.C.R. SUPREME COlJRT REPORTS 687 condition prescribed by contract or statutory regulations is void as inconsistent with the constitutional safeguard. This exception 1963 is founded not on any right in the public servant to elect, but on the Mo ti Ram Deka invalidity of the covenant or regulation. There is no distinction etc between cases of termination of employment resulting from attaining · the age of superannuation or from orders of compulsory retirement, v · terminating temporary employment or employment on probation General and orders terminating employment after notice under R. 148(3).
Manager, N.E.F. An appointment to a public post is always subject to the pleasure of the President, the exercise of such pleasure being restricted in the manner provided by the Constitution. A person appointed substantively to a post does not acquire a right to hold the post till he dies. He acquires merely a right to hold the post subject to the rules. If employment is validly termi- ..nated, the right to hold the post is determined even apart from the exercise of the pleasure of the President or the Governor.
A public servant cannot claim to remain in office so long as he is of good behaviour. Such a concept of the tenure of a public servant's post is inconsistent with Arts. 309 and 310 of the Con- stitution. Rules 148(3) and 149(3) do not infringe Art. 14 of the Consti- tution. Art. 14 forbids class legislation but it does not forbid reasonable classification for the purpose of legislation. The special conditions in which the railways have to operate and the interests of the nation which they serve, justify the classification.
If for the purpose of ensuring the interests and safety of the public and the State, the President has reserved to the Railway Administra- tion power to terminate employment under the Railways, it cannot be assumed that such vesting of authority singles out the railway servants for a special or discriminatory treatment 'so as to expose the rule which authorises termination of employment to the lia- bility to be struck off as infringing Art.
14.
It is true that R. 148(3) does not expressly provide for guidance to the authority exercising the power conferred by it, but on that account, the rule cannot be said to confer an arbitrary power and be unreasonable or be in its operation unequal. The power is exercisable by the appointing authority who normally is if not the General Manager, a Senior Officer of the Railways. In con- sidering the validity of an order of determination of employment under r. 148, an assumption that the power may be exercised mala- fide and on that ground discrimination may be practised, is wholly out of place.
Because of the absence of specific directions in R. 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, importance of the efficient functioning of the rail transport in the interest of national economy and the Railways, Maligaon, Pandu, etc. 1963. 688 SUPREME COURT REPORTS [ 1964] status of the authority invested with the exercise of power, it may reasonably be assumed that the exercise of ·the power would Moti Ram Deka appropriately be exercised for the protection of public interest or tc on grounds of administrative convenience.
Power to exercise e · discretion is not necessarily to be assumed to be a power to dis- v. . criminate unlawfully and possibility of abuse of power will not General invalidate the conferment of power. Manager, N.E.F. Railways, Maligaon, Pandu, etc. Case law referred to. CIVIL APPELLATE JURISDICTION: Nos. 711-713 of 1962. Civil Appeals Appeals by special leave from the judgments and order dated May 27, 25, 1960, of the Assam High Court in Civil Rule Nos. 3 and 25of1960 res-. pectively and December 15, 1959 of the Allahabad High Court in Special Appeal No. 502 of 1958.
CIVIL APPEAL No. 614 OF 1962. Appeal by special· leave from the order dated April 6, 1961 of the Punjab High Court in Letters Patent Appeal No. 81/1961. CIVIL APPEALS Nos. 837 TO. 839 ~F 1963. Appeals from the judgment and order dated January 18, 1963 of the Assam High Court in Civil Rule 386 to 388 of 1961. B.C. Ghose and P.K. Chatterjee, for the appel- lants (in C. A. Nos. 711 to 713/1962). J.M. Lall and V.D.
Mahajan, for the appellant (in C.A. Nos. 714 of 1962). · S. V. Gupte, Additional Solicitor-General, N aunit Lal and R.H. Dhebar, for the respondents (in C.A. Nos. 711-714i1962). C.K. Daphtary, Attorney-General, R. Ganapathy Jyar and R.H. Dhebar, for the appellants (in C.A. Nos. 837-839;1963). B.C. Ghosh andP.K. Chatterjee, for the respondents (in C.A. Nos. 837-839/1963). · I; .. '.. •• R.K. Garg, M.K.
Ramamurthi, S.C. Agarwal • and D.P. Singh, for the intervener (in C.A. No. 711/ 1962.J -. 5 S.C.R. SUPREME COURT REPORTS 689 J R.K. Garg and P.K. Chatterjee, for the intervener 1963 :I: (in C.A. Nos. 837-839/1963). Moti Ram Deka December 5, 1963. The Judgment of P.B. Gajendra- etc. gadkar, K. ·N. Wanchoo, M. Hidayatullah and N. v. Rajagopala Iyyangar, JJ. was delivered by Gajendra- M Gener# E F gadkar J.
K. Subba Rao, and K.C. Das Gupta JJ. 0 ';.!7(' Y~ • · delivered separate Opinions. J.C. Shah J. delivered a Mal;~OI; dissenting Opinion. · Pandu, etc'. GAJENDRAGADKAR J. These two groups of ap- peals have been placed before us for hearing together, Gajendragadkar because they raise a common question of law in re-· 1· gard to the Constitutional validity of Rules 148(3) and 149(3) contained in the Indian Railway Establishment Code, Vol.
I. (hereafter called the Code), The first group consists of four appeals. C.A. Nos. 711 & 712 of 1962 arise from two petitions filed by the .- appellants Moti Ram Deka and Sudhir Kumar Das respectively in the Assam High Court. Deka was a peon employed by the North East Frontier Railway, whereas Das was a confirmed clerk. They alleged that purporting to exercise its power under Rule 148 of the Code, the respondent, the General Manager North East Frontier Railway, terminated their ser- vices 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 Raijway, 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 i. services on the ground that Rule 148 of the Code was· invalid ..
The appelll\nt's plea has been .rejected· 1/SCI/64-44 ·1f y 690 SUPREME COURT REPORTS i~ :, 1 [1964] \" ./: · 1963 by the said High Court both by the learned single Judge . who heard his petition in the first instance and by the Mot• Ram Deka Division Bench which heard his Letters Patent Appeal. etc. That is how the appellant has . come to this Court v. by special leave. General Manager, N.E.F. Civil Appeal No. 71411962 arises out of a writ Rail•ays, petition filed by Tirath Ram Lakhanpal who was a Maligaon, Class A Guard employed by the Northern Railway, Pandu, etc.
New· Delhi. His services were terminated by the - · Respondent General Manager of the said Railway Gajendragadkar_under Rule 148 of the Code and his writ petition to J. quash the said order has been dismissed by the Punjab High Court. The learned single Judge who heard this writ petition rejected the pleas raised by the appel- lant, and the Division Bench . which the appellant moved by way of Letters Patent Appeal summarily dismissed his Appeal.
It is this dismissal of his Letters Patent Appeal which. has brought the appellant .to this Court by Special Leave. That is how this group of four appeals raises a common question about the validity of . Rule 148. f' . The next group .consists of three appeals which challenge the decision of the Assam High Court holding that the orders of dismissal passed by ap- pellant No. -2, the General Manager, North .East { Frontier Railway, against the three respective respon~ dents S.B.
Tewari, Parimal Gupta and Prem Chand Thakur, under Rule 149 of the Code, were invalid. These three .respondents had moved the Assam High Court for quashing the impugned orders terminating their services, and the writ petitions having been heard by a special Bench of the said High Court consisting of three learned Judges, the majority opinion was that the impugned orders were orders of dismis- sal and as such, were outside the purview of Rule 149.
According to this view, though Rule 149 may not be invalid, the impugned orders were bad because as orders of dismissal they were not justified by Rule 149. The. minority view was that Rule 149 itself is invalid, and so, the impugned orders were automati- cally invalid, In the result, the three writ petitions '.; ·~= : ~ > • 5 S.C.R. SUPREME COURT REPORTS 691 filed by the three respondents respectively were allowed. 1963 That is why the Union of India and the General . - Manager, N.E.F.
Railway, appellants l & 2 respective- Mot• Ram Deka ly, have come to this Court with a certificate granted etc. by the Assam High Court, and they challenge the v. correctness of both the majority and the minority Generar views. Thus, in these three appeals, the question Manag~r,N.E.F. about the validity of Rule 149 falls to be considered. Ra• 1l~ays, Ma 1gaon, Pandu, etc. The first group of four appeals was first heard _ by a Constitution Bench of five Judges for some Gajendragadkar time.
At the hearing before the said Bench, the 1 learned Addi. Solicitor-General conceded that the ques- · tion 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 argu- ments before the said Bench had made some progress, the learned Addi. 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 consis- tent 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. There- after, the learned Chief Justice ordered that the said group should be heard by a larger Bench of seven Judges of this Court. At that time, direction was also issuejl that the second group of three appeals which raised the question about the validity of Rule 149 should be placed for hearing along with the first group.
In fact, the learned counsel appearing for both the parties in the said group themselves thought that it would be appropriate if the two groups of appeals are heard together. That is how the two groups of appeals have come for disposal before a larger Bench; and so, the main question which we have to con- sider is whether Rule 148(3), and Rule 149(3) which has superseded it are valid. The contention of the 692 SUPREME COURT REPORTS [1964] ·1963 .railway employees concerned is that these Rules .. ·- contravene the Constitutional safeguard guaranteed iMoti Ram Deka to civil servants by Art. 311 (2).
It is common ground etc. that if it is held that the Constitutional guarantee v. . prescribed by Art. 311(2) is violated by the Rules, . 'General they would be invalid; on the other hand, the Union Manag~r, N E.F. of India and the Railway Administration contend .<Rai/~ays, Jhat the said Rules do not contravene Art: 311(2), .•Mabgaon, but are wholly consistent with it. · Pandu, etc. At this stage, it would be convenient to refer Git]endragadkar to the two Rules.
Rule 148 deals with the termination J. of service and periods of notice. Rule 148(1) deals with temporary railway servants; R. 148(2) deals with apprentices, and R. 148(3) ·deals with other (non-pensionable) railway servants. It is with R. 148(3) that. we are concerned in the present appeals. It reads thus:- · "(3) Other (non-pensionable) railway servants:- The service of other (non-pensionable) railway servants shall be liable to termination on notice on either side for the periods shown below.
Such notice is not however required in cases of :. dismissal or removal as a disciplinary measure '.after compliance with the provisions of Clause , ·(2) of Article 311 of the Constitution, retirement on attaining the ··age of superannuation, and -termination of service· due to · mental or phy:>ical incapacity." · . ':'Note:-The appointing authorities are empower- .. : , · ,ed. 'to. reduce or waive, at their discretion, the ' , ; stipula'.ted period of notice to be given by an --·· 1 ~·emplbyee, but the reason justifying their action ·.; '~ sh'ould be recorded. i,. · ;u i • , . ' ' 1.:o:This power cannot be re-delegated." Th~il'.'follow'' tlie. respective periods for which notice lias"to' be~giyen.
It is unnecessary to refer to these.l -''oitd .Ti .- . j_I pe1:18 .,~·· . ,. ! . , .: 1: •.Wefriiay incidentally cite Rule 148(4) as well which relidsHhus :;c.=:: :n·· ,. •., 5 S.C.R. SUPREME COURT REPORTS 69J • I> "In lieu of the notice prescribed in this rule, 1963 it shall be permissible on the part of the Railway u .R-~ k Administration to terminate the service of a 011 am e .a railway servant by paying him the pay for the etc; period of notice." v.
General It is thus clear that R. 148(3) empowers the appropriate Manager, N.E.F. authority to terminate the services of other non-· Railways pensionable railway servants after giving them notice Ma/igao~ for the specified period, or paying them their salary Pandu et;, for the said period in lieu of notice under R 148(4). · _' The non-pensionable services were brought to Gajendragadkar an end in November, 1957 and an option was given to J. the non-pensionable servants either to opt for pension- able 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 disci- plinary measure after compliance with the provisions of clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity" Th~ Rule. then specifies. the different periods f~r which notice has to be given in regard to the different categories of servants.
It is unnecessary to refer to these periods. Then follow sub-rule (4). The same may be conveniently set out at this place: · '.'(4) In lieu of .th~ notice prescribed in this rule, 1t sh~ll. be p7rm1ss1ble on the part of the Railway Adm1mstrat1on to terminate the service of a railway servant by paying him the pay for the period of notice. 1963 Moti Ram Deka etc. v. General Manager, N.E.F; Railways, Ma/igliOn, Pandu, etc. 694 SUPREME COURT REPORTS [1964] Note:-The appointing, authorites are em- powered to reduce or waive, at their discretion, the stipulated period of notice to be given by an employee, but the reason justifying their action should be recorded.
This power cannot be re-delegated." Just as under Rule 148(3) the services ofthe railway employees to which it applied could be terminated after giving them notice for the period specified, so under R. I 49(3) termination of services of the employees con- Gajendragadkar cerned can be brought about by serving them with a J: notice for the requisite period, or paying them their salary for the said period in lieu of notice under R. 149(4).
Rule 149(3) applies to all servants other than temporary servants and apprentices. The dis- tinction between pensionable and non-pensionable servants no longer prevails. The question which we have to consider in the present appeals is whether the termination of services of a permanent railway servant under Rule 148(3) or Rule 149(3) amounts to his .removal under Art. 311(2) of the Constitution. If it does, the impugned Rules are invalid; if it does not, the said Rules are vaild.
That takes us to the question as to the true scope and effect of the provisions contained in Art. 3U (2), and the decision of this question naturally involves the construction of Art. 311 (2) read in the light of Articles 309 and 3 JO. In considering this poinl!, if may be useful to refer very briefly to the genesis of these provisions and their legislative background. In this connection, it would be enough for our purpose if we begin with the Government of India Act, 1833. · Section· 74 of the said Act made the tenure · of all Services under the East India Company subject to His Majesty's pleasure.
These· servants were also made subject to the pleasure of the Court of Directors with a proviso which excepted from the said rule those who had been appointed directly by His Majesty. In due course, when the Crown took over the govern- ment of this country by the Government of India Act, 1858, section 3 conferred on the Secretary of ... 1 •- 1 5S.C.R. SUPREME COURT REPORTS 695 State all powers which has till then vested in the 1963 Court of Directors, while the powers in relation to the - servants of the Company which had till then ve$ted Moti Ram Deka in the Director were, by s. 37, delegated to the Secre- etc. tary of State. v.
Th. . . . d .1 ' h h General 1s pos1tJon contmue untJ we reac t e Manager NE F Government of India Act, 1915. This Act repealed Rail~ay;, · • all the earlier Parliamentary legislation and was in the Maligaon, nature of a consolidating Act. There was, however, Pandu, etc. a saving clause contained in section 130 of the said Act which preserved the earlier tenures of servants Gajendragadkar and continued the rules and regulations applicable J. 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{l ), in substance, provided that "subject to the provisions of this Act and the rules made thereunder, every person in the civil service of the Crown in India holds office during His Majesty's pleasure", and it added that no person in that service may be dismissed by any authority subordinate to that by which he was appointed.
It also empowered the Secretary of State in Council to re-instate any person in that service who had been dismissed, except so far as the Secretary of State in Council may, by rules, provide to the contra- . ry. Section 96B(2) conferred power on the Secretary of State in Council to make rules for regulating the classification of the Civil Services in India, the method of recruitment, the conditions of service, pay and allowances and discipline and conduct while sub- section l4) declared that all service rules then in force had been duly made and confirmed the same.
In 1935, the Government of India Act 1935 was passed and s. 96Bll) was reproduced in sub-.sections (1) and (2) of section 240, and a new sub-section was. added as . ss. (3). By t?i~ new sub-section, pro- tection was given to the crvll servant by providing that he shall not be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
The definition contained in s. 277 of the said 1963 696 SlJPREME COURT REPORTS [1964] act shows that the expression "dismissal" included removal from service. Moti Ram Deka · That continued to be the position until the Con-eti:. stitution was adopted in 1950. The Constitution G v. 1 has dealt with this topic in Articles 309, 310 and M ener~ E F 311. Art. 310 deals with the tenure of office of persons anager, .. · ·serving the Union or a State, and provides that such Raib1·ays, · · 1 f Ma/igaon, office is held durmg the p easure o the President if the post is under the Union, or during the pleasurePandu, etc. ~~ of the Governor if the post is under a State.
The Gajendragadkar doctrine of pleasure is thus embodied by Art. 31 Otl ). J Art. 310(2) deals with cases of persons appointed · under contract, and it provides that if the President or the Governor deems it necessary in order to secure the services of a person having special qualifica.tions, he may appoint him under a special contract and the said contract may provide for the payment to him of compensation if pefore the expiration of an a.greed period, that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.
It is significant that Art:: 310(1) begins with a clause "except as expressly provided by this Constitution". In other words, if there are any other provisions in the Con- stitution which impinge upon it, the provisions of Art: 310(1) must be read subject to them. The ex- ceptions 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 contem- plated by Art. 310( l) 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 Legis- lature may . pass· Acts in respect of the terms and i.:<)nditions of service of persons appointed to .public < c ' -\ / 5S.C.R. SUPREME COURT REPORTS 697 services and posts, but that must be subject to the 1963 provisions of the constitutio11 which inevitably brings -- in Art. 310(1). The proviso to Art. 309 makes Moti Ram Deka it clear that it would be competent for the President or etc. such person as he may direct in the case of services v. and posts in connection with the affairs of the Union, General and for the Governor of a State or such person as Manager, N.E.f. he may direct in the case of services and posts in Railways, connection with the affairs of the State, to make rules Maligaon, regulating the recruitment, and prescribing the con- Pandu, etc. ditions of service of persons respectively appointed . -- to services and posts under the Union or the State.
Ga1endragadkar The pleasure of the President or the Governor men- J. tioned in Art. 310(1) can thus be exercised by such person as the President or the Governor may res- pectively direct in that behalf, and the pleasure thus exercised has to be exercised in accordance with the rules made in that behalf. These rules, and indeed, the exercise of the powers conferred on the delegate must be subject to Art. 310, and so Art. 309 cannot impair or affect the pleasure of the President or the Governor therein specified.
There is thus no doubt that Art. 309 has to be read subject to Articles 310 and 311, and Art. 310 has to be read subject to Art.
311. It is significant that the provisions contained in Art. 311 are not subject to any other provision of the Constitution. Within the field covered by them, they are absolute and paramount. What then is the effect of the provisions contained in Art. 311(2)? Art. 311(2) reads thus:- "No such person as aforesaid shall be dis- missed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." · We are not concerned with the cases covered by the proviso to this article in the present appeals.
It may be taken to be settled by the decisions of this Court that since Art. 311 makes no distinction between permanent and temporary posts, its protection must be held to extend to all government servants holding 698 SUPREME COURT REPORTS [1964J 1963 permanent or temporary posts or officiating in any - . of them: The protection afforded by Art. 311(2) Muti'Ram·Dekajs limited to the imposition of three major penalties . . etc. contemplated by the service Rules, viz., dismissal, v. removal or reduction in rank.
It is true that the General consequences of dismissal are more serious than Manager, N.E.F. those of removal and in that sense, there is a technical Railways, distinction between the two; but in the context, dis~ Ma/igaon, missal, .. removal and reduction in rank which are Pandu, etc. specified by Art. 311 (2) represent actions taken . -- by way of penalty. In regard to temporary servants, Ga1endragadkar or servants on probation, every case of termination 1· of service ·may not amount to removal.
In cases falling under these categories, the terms of contract· or service rules may provide for the termination of the services on notice of a specified period, or on payment of salary for the said period, and if in exercise of the power thus conferred on the employer, the services of a temporary or probationary servant are terminated, it may not necessarily amount to removal. In every such case, courts examine the substance of the matter, and if it is shown that the termination .. of services is no more than discharge 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 reduc- tion 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 IndiaOl State of Bihar v. Gopi Kishore Prasad(2) State of Orissa & Anr. v. Ram Narayan Das<3J S. Sukhbans Singh v. The State of Punjab(4J and Madan Gopal v. The State of Punjab & Ors. (5) . (I) A. I. R. 1964 S.. C.
449. (2) [1961] 2 S. C.R. 590: (3) [1961] I S. C.R.
606. (4) [1963] I S. C.R.
416. • . , . (5) [1963] 3 S. C. R.
716. ; . ' 5 S.C.R. SUPREME COURT REPORTS 699 This branch of the law must, therefore, be taken to 1963 be well-settled. . .
Moti Ram Delea In regard to servants hol~mg substant1yely ere. a permanent post who may conveniently be· descnbed v hereafter as permanent servants, it is similarly well- G · 1 1 ' h 'f h l 'l . d d enerasett ea t at 1 t 7y are compu son Y retire un. er Mana er N.E.F. the relevant service rules, such compulsory retlfe- n!iw~ys ment does not amount to removal under Art. 311 M /' ' {2}. Similarly, there can be no·doub~ that t~~ retire- Pa~~~~~;;, ment of a permanent servant on his attammg the age of superannuation does not amount to his re- Gajendragadkar moval within the meaning of Art. 311(2).
J. The question which arises for our decision in the present appeals is: if the service of a permanent civil servant is terminated otherwise than by operation of the rule of superannuation, or the rule of compul- sory retirement does such termination amount to removal under Art. 311(2) or not ? It is on this aspect of the question that the controversy between the parties arises before us. Before dealing with this problem, it is necessary to refer to the relevant Railway Rules themselves.
Speaking historically, it appears that even while the affairs of the country were in charge of the East India Company, there used to be some regulations which were substantially in the nature of administrative instructions in regard to the conditions of service of the Company's employees. These regulations were continued by s. 130(c) of the Government of India Act, 1915 which provided, inter alia that the repeal shall not affect the tenure of office, conditions of service, terms of remuneration or right to pension of any officer appointed before the commencement of this Act.
Sec