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Jagdish Dajiba Vs. the Accountant-general of Bombay and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. No. 120 of 1957
Judge
Reported inAIR1958Bom283; (1958)60BOMLR241; ILR1958Bom514; (1959)ILLJ117Bom
ActsConstitution of India - Articles 13, 14, 22, 148, 226, 309, 310, 310(1), 311, 311(2), 313 and 320(3); Civil Services (Classification, Control and Appeal) Rules - Rule 52; Union Public Service Commission (Consultation) Regulations - Regulation 5(1) and 5(2); Government of India Act, 1919 - Sections 96-B and 96-B(1); Government of India (Amendment) Act, 1935 - Sections 240, 240(1), 240(2) and 240(3); States Reorganization Act, 1957
AppellantJagdish Dajiba
RespondentThe Accountant-general of Bombay and ors.
Appellant AdvocateS.G. Kukdey and ;M.N. Chandurkar, Advs.
Respondent AdvocateW.B. Pendharkar, Special Govt. Pleader
Excerpt:
constitution of india, articles 310, 311, 313, 14 - civil services (classification, control and appeal) rules, rule 52--president exercising his pleasure under article 310 whether bound by any statute or rules--phrase 'except as expressly provided by this constitution' in article 310 whether includes rules and regulations continued in force under article 313--satisfaction of president in terms of article 311(2)(c) whether justiciable--validity of rule 52 of civil services rules.;where the president exercises his pleasure under article 310 of the constitution of india, he is bound only by the express provisions of the constitution such as article 311 and not by any rules.;restrictions or limitations placed on the powers of the president are only confined to express provisions of the.....g.b. badkas, j. 1. this is a petition under article 226 of the constitution of india for a writ or order or direction, directing respondents 1 and 2 to ignore the order of the president dismissing the petitioner from service and to take him back in service. 2. the petitioner was employed in the office of the accountant-general of madhya pradesh at nagpur as upper division clerk. the appointing authority of the petitioner was the accountant-general, madhya pradesh. the petitioner belonged to the civil service of the union of india, class iii, and was holding a permanent civil post under the union of india. consequent on the coming into force of the states reorganization act (no. xxxvii of 1957), the petitioner's services were allotted to the account ant-general of bombay, the respondent.....
Judgment:

G.B. Badkas, J.

1. This is a petition under Article 226 of the Constitution of India for a writ or order or direction, directing respondents 1 and 2 to ignore the order of the President dismissing the petitioner from service and to take him back in service.

2. The petitioner was employed in the Office of the Accountant-General of Madhya Pradesh at Nagpur as Upper Division Clerk. The appointing authority of the petitioner was the Accountant-General, Madhya Pradesh. The petitioner belonged to the civil service of the Union of India, class III, and was holding a permanent civil post under the Union of India. Consequent on the coming into force of the States Reorganization Act (No. XXXVII of 1957), the petitioner's services were allotted to the Account ant-General of Bombay, the respondent No. 1, and since 1-11-1956 the petitioner had been working under the said authority, who thereupon became the authority equal in rank with the petitioner's appointing authority. The respondent No. 2 is the Deputy Accountant-General, Bombay, (Nagpur Branch) while the respondent No. 3 is the Executive Engineer of the Division in which the petitioner was working at the relevant time.

3. The petitioner was served by the respondent No. 3 with an order dated 23-1-1957 passed by the President of India, dismissing the petitioner from service. The order passed by the President is reproduced below :-

'The President is satisfied that the retention of Shri J. D. Sarmukaddam an Upper Division Clerk in the office of the former Accountant-General, Madhya Pradesh, now working as unqualified Divisional Accountant under the Accountant General, Bombay, in service is prejudicial to national security and that the said Shri J.D. Sarmukaddam ought to be dismissed from service.

2. The President is further satisfied under Sub-clause (c) of the proviso to Clause (2) of Article 311 of the Constitution that in the interest of the Security of the State it is 'not expedient to give the said Shri Sarmukaddam an opportunity to show cause against the action proposed to be taken in regard to him as stated above.

3. Accordingly, the President hereby dismisses the said Shri J.D. Sarmukaddam from service with immediate effect.'

The President is, however, not a party to these proceedings. This order of the President was communicated to the petitioner through the respondent No. 3, by the Deputy Accountant General, Bombay, (Nagpur Branch) by his letter dated 1-2-1957 enclosing herewith the abovementioned order of the President. The respondent No. 3 thereupon informed the petitioner by his letter dated 11-2-1957 that he should hand over the charge to his successor immediately in view of the order of the President.

4. The petitioner has now come before us under Article 226 of the Constitution raising the following objections to the order of dismissal passed by the President. The objections have been reproduced as far as possible as mentioned in the petition.

(a) That the Civil Services (Classification, Control and Appeal) Rules, hereinafter called the Rules, gave statutory right of appeal to the petitioner against the order of dismissal, that the order having been passed by the President himself the provisions of appeal to the President and the provisions of getting redress from the President have been rendered nugatory, that the Rules are saved by Article 313 of the Constitution and that as such the order passed in breach of the Rules is illegal and void;

(b) That there was no material or permissible material or information on which the President could be satisfied that it was not expedient to give the petitioner a reasonable opportunity of showing cause in terms of Article 311(2)(c), that therefore the order passed by the President is in contravention of Article 311(2) of the Constitution, that there is no law which makes the satisfaction of the President contemplated under Article 311(2)(c), proviso (c) conclusive, that as such the petitioner was entitled to know the material or information on which the action of the President was based, and that the petitioner was, therefore, entitled to canvass in respect of the insufficiency or veracity of the President's satisfaction;

(c) That the impugned order is in contravention of Article 320(3)(c) as the said order is passed without consulting the Union Public Service Commission, that the President had not made regulations under proviso to Clause (3) of Article 320, and that as such the said order is void and illegal; and

(d) That Article 310 of the Constitution does not permit the President of India to exercise his pleasure so as to breach the law of the land and thus single out the petitioner in contravention of the provisions of the Rules, and in so acting and passing the impugned order the action of the President offended Article 14 of the Constitution, that if rule 52 of the Rules gives power to the President with necessary consequence of taking away the right of appeal given to the petitioner under the Rules, then that rule itself is void being in contravention of Article 14 of the Constitution.

5. The objections (a) and (b) can be conveniently considered together. The question in brief is whether and how far the Rules can control the power of the President in the matter of dismissal of servants serving under the Union of India. This necessitates the examination of the power of the President in relation to the services under the Union of India and the true nature and scope of the Rules vis-a-vis the powers of the President under the Constitution. It will also be necessary to consider the nature of the order passed by the President and the provisions under which the said order can be said to have been passed in view of the fact that the order does not mention the specific provision under which it has been passed.

6. Chapter XIV of the Constitution deals with services under the Union and the States. Provisions from the Constitution in relation to the services, so far as they are relevant, are reproduced below. Article 309 provides:

'Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union.......

Provided that it shall be competent for the President..........to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.'

Article 310 provides:

'(1) Except as 'expressly provided by this Constitution,' every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union holds Office 'during the pleasure of the President'...........-' (underlining (here into ' ') by us).

Article 311 provides:

'(1) No person who is a member of a civil service of the Union or an all-India service ora civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed 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:

Provided that this clause shall not apply:

(a) x x x x x

(b) x x x x

(c) where the President or Governor 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.'

7. The above provisions of the Constitution makes it abundantly clear and beyond any shadow of doubt that the services under the Union or the State are held during the pleasure of the President or Governor or Rajpramukh, as the case may be. The President is controlled in the exercise of this power only by the express provisions of the Constitution. Such controlling limitations are provided by Article 311 of the Constitution and other Articles of the Constitution which expressly deal with some such services.

8. It was argued for the petitioner that under Article 313 all laws relating to services in force before the commencement of the Constitution are continued in force even after the Constitution until other provision is made in that behalf. It was further urged that the Rules are such law and the same having been continued in force under Article 313 of the Constitution should be considered as controlling the exercise of the power of the President under Article 310 of the Constitution.

9. It is indeed hard to accept this sub-mission. It is being overlooked that such rules or regulations continue in force so far as they are consistent with the provisions of the Constitution. Secondly, such rules cannot be classed as being 'the express provision in the Constitution' simply because they have been continued in force by virtue of Article 313 of the Constitution. All pre-existing rules operate only subject to the provisions of the Constitution.

10. The Rules were first made in 1920 and were again published in the Gazette of India on 21-6-1930 and were also amended thereafter from time to time. These Rules were made under Section 96B of the Government of India Act, 1919. The relevant provisions of Section 96B of the Government of India Act, 1919, were:

'(1) Subject to the provisions of this Act 'and of rules' made thereunder, every person in the civil service of the Crown in India holds office during His Majesty's pleasure, ....... but no person in that service may be dismissed by any authority subordinate to that by which he was appointed...........

(2) The Secretary of State in Council may make rules for regulating the classification of the civil services in India, the methods of their recruitment, their conditions of services, pay and allowances, and discipline and conduct.....'

11. It is thus clear that under the Government of India Act, 1919, the Rules afforded the constitutional guarantee to the services and to that extent the services were then' protected. The exercise of the pleasure of His Majesty in relation to the services was subject to the provisions of the said Act and the rules made thereunder.

12. The Government of India Act. 1935, however, introduced a change. The relevant provisions of Section 240 of the Government of India Act, 1935, were:

'(1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure.

(2) No such person as aforesaid... shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.

(3) No such person as aforesaid shall be dismissed 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:

Provided that this sub-section shall not apply;

(a) where a person is dismissed or reduced in rank on the ground of conduct which, has led to conviction on a criminal charge; or

(b) where an authority empowered to dismiss a person or 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.'

13. Reading the above provisions, it is clear that for the first time, by virtue of the change made in the Government of India Act, the discretion of the Crown to dismiss a civil servant at pleasure became free from the fetters of the Rules. The Constitution of India, however, has made a further change in the above-mentioned constitutional safeguards. Proviso (c) to Clause (2) of Article 311 is new. There was nothing corresponding to it in the Government of India Act, 1935. As a result of this proviso and Article 310 of the Constitution, 'the President is now free to remove or 'dismiss a person holding a civil service under the Union at his pleasure and can even deprive him of the guarantee embodied in Clause (2) of Article 311 in respect of the opportunity to defend himself against such dismissal or removal provided the President is satisfied that in the interest of the security of the State it is not expedient to give that person such an opportunity.

14. Under Article 309 of the Constitution an appropriate Legislature is empowered! subject to the provisions of the Constitution, to regulate recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or the State. The Article also empowers the President or Governor or Rajpramukh of a State to make similar rules regulating recruit-ment and conditions of service until provision is made in that behalf by the appropriate Legislature. The Constitution thus expressly provides that even the Legislature cannot whittle down the powers of the President which he possesses under the provisions of the Constitution. Therefore, laws or rules made by virtue of the powers under Article 309 must be in conformity with the provisions of the Constitution, that is, Articles 310 and 311 of the Constitution. Article 313 also expressly provides that all the laws in force immediately before the Constitution and applicable to any public service shall continue in force so far as consistent with the provisions of the Constitution. Restrictions or limitations placed on the powers of the President are only confined to express provisions of the Constitution and not to any exceptions or limitations which may be provided by any statute or rules. The phrase 'except as expressly provided by this Constitution' with which Article 310 begins cannot include rules or regulations which are continued in force under Article 313 of the Constitution, nor can they remain operative when they are not consistent with the provisions of the Constitution. Whatever be the authority of the rules or regulations they cannot be equated with 'the express provisions of the Constitution,' unless the Constitution itself so expressly declares.

15. In the Punjab Province v. Tara Chand AIR 1947 F. C. 23 (A) their Lordships, while examining the question about the tenure of services under the Crown under the Government of India Act, 1935, observed:

'It may be conceded that in the absence of express limitation a public servant in India holds office during His Majesty's pleasure. This has been recognised and given statutory effect in Sub-section (1) of Section 240, Constitution. Act. It has, however, been made subject to the express provisions of the Constitution Act some of which are set out in the remaining sub-sections of Section 240.'

In that very judgment their Lordships have clearly brought out the distinction between the statutory safeguards enacted in the Government of India Act, 1935, and the rules framed thereunder. Their Lordships in paragraph 14 of the judgment observed:

'We are of the view that Parliament enshrined these provisions in the body of the Act deliberately in order to provide public servants with safeguards the contravention of which, should give them a right of action for appropriate relief. The distinction between the consequences flowing from the contravention of a statutory rule, such as the provision corresponding to Section 240(3) then was and the contravention of a statutory provision itself, such as the provision corresponding to Section 240(2) contained in Section 96B Government of India Act, 1915, is well brought out in the judgments of the Judicial Committee in R. Venkata Rao v. Secretary of State and B.T. Bangachari v. Secretary of State . In the last case their Lordships observed: '........ It is manifest that the stipulationor proviso as to dismissal is itself of statutoryforce and stands on a footing quite other than any matters of rule which are of infinite variety and can be changed from time to time.' In Shyamlal v. State of U. P., : (1954)IILLJ139SC , their Lordships, while interpreting the two decisions, namely and , observed that in view of their Lordships of the Privy Council 'although the power of dismissal at pleasure was 'subject to the Provisions of this Act (1919) and of the rules made thereunder' ....... those opening words of Section 96B(1) did not qualify the unfettered discretion of the Crown to dismiss a servant at pleasure and that the remedy of the servant for the violation of the rules was not by a law suit but by an appeal of an official or political kind.'

16. In the above quoted decision their Lordships further observed:

'Finally, we have our new Constitution. Article 310(1) reiterates the constitutional theory of the tenure of office being during the pleasure of the President, the Governor or Rajpramukh as the case may be.' It is thus clear that any limitations on this power of the President should be founded on express provisions of the Constitution, if any, and not on the rules or statutes enacted by the Legislatures. Moreover it is to be noted that the Rules in question do not contain any stipulation as to the tenure of services. Among other things they only provide for action to be taken against the services in disciplinary matters. The Rules cannot be interpreted so as to permit an encroachment on the powers given to the President under Article 310 of the Constitution.

17. It was then urged that though the President is not controlled in the exercise of his power under Article 310 by any rules or statutes framed by the authorities external to him, it can be open to the President himself to create self-imposed limitations in the form of rules, and that once such limitations are created by the President himself, he is bound to act within such limited powers. The argument was based with reference to substitution of new rule 52 framed under S. R. O. 1129, Notification No. 7/4/1956--Estt (A) dated 9-5-56 published in the Gazette of India, 19-5-1956, in exercise of the powers conferred by proviso to Article 309 and Clause 5 of Article 148 of the Constitution, in place of the old rule 52 existing in the Civil Services (Classification Control and Appeal) Rules which existed at the commencement of the Constitution and which are now continued in force by Article 313 of the Constitution.

18. It was also urged that the order of the President should be considered as having been passed under the powers conferred by new rule 52 of the Rules. Support for this submission was obtained from the fact that Article 310 does not contain any operative provision as such for passing orders though it contains only a rule of constitutional doctrine pertaining to the tenure of services under the Union or the State.

19. We are clear in our mind that the order of the President, which is reproduced above, was passed by him under his powers under Article 310 of the Constitution. The order on the face of it does hot expressly mention the provision under which it was passed. It does not mention that it was passed under Civil Services (Classification Control and Appeal) Rules. There is no reference to any provision of the Rules including Rule 52. The nature and scope of the order and the power exercised by the President In passing the said, order clearly indicate that it was passed under the constitutional power. The new rule 52 does not give any new power to the President. The new rule 52 can be considered as enacted ex majore cautela -- a mere reproduction of the power contained in Article 310. The new rule 52 places no limitations whatsoever on the President. Comparison of this new rule with the old rule will be relevant at this place. The old Rule 52 provided that 'subject to the provisions of these rules' the Governor-General in Council or a Local Government of a Governor's Province may impose the penalties specified in Clause 6 or in Clause 7 on any such person not being one of those referred to in Rule 52. The new Rule 52 provided as follows:

'The President may impose any of the penalties specified in Rule 49 on any person who is a member of a Central Service or holds a post in connection with the affairs of the Union.'

Previously the Governor-General in Council could exercise his powers relating to these services only subject to the Rules. New Rule 52 left the President free to exercise the power without any limitations of the Rules. Therefore, impugned order of dismissal can be attributed only to the power of the President which he enjoys under Article 310 of the Constitution. It is in consonance with the principles of law that if any action is taken by any authority and if there is a valid provision of law under which such action can be taken, then such action should be attributed to such provision of law. Validity or invalidity of the action would depend on the existence or absence of the power with the authority taking that action. The absence of express mention of the provision of law cannot render the action invalid if it is attributable to a provision of law under which the action could be validly taken.

20. In this case we feel no hesitation in holding that the order in question was passed by the President by virtue of his power under Article 310 of the Constitution, and we cannot hold that in passing this order the President was in any way restricted in the exercise of his power by any of the provisions of the Rules. The order records that the President is satisfied that the retention of the petitioner in the service is prejudicial to the national security and therefore he should be dismissed. The President has also invoked his power under proviso (c) to Clause (2) of Article 311 of the Constitution and has also recorded his satisfaction that it is not expedient to give to the petitioner an opportunity to show cause against the action taken in regard to him as stated in the said order. The nature of the order thus, leaves no doubt that the Presidentpassed this order under the constitutional powers. The President is not a party to these proceedings nor he could be so joined. We had, therefore, to form our own conclusions, considering the nature of the order and the constitutional provisions under which such order could be passed.

21. The fact that Article 310 does not contain an operative provision for passing an order of this kind presents no difficulty. Article 310 provides that services mentioned therein are dismissible at pleasure of the president. The Constitution gives this power for being exercised whenever the President would feel it necessary to exercise it. It is, therefore, implicit in this grant of power to the President that he can pass order which would give effect to the exercise of this power. To hold otherwise would render Clause (1) of Article 310 completely superfluous and nugatory.

22. We are also unable to hold that by substitution of new Rule 52 in place of the old Rule 52, the President has created any fetters on his power under Article 310 of the Constitution. As already said, the old rule contained fetters on the powers of the Governor-General in Council while under the new rule the President is left completely free and it is obviously because of the provisions that are contained in our Constitution. The amendment of the rule was made by the President under his rule-making power under Article 309. After the Constitution the authority of the Governor-General in Council did not exist and amendment of the rules was as such necessary both by changing the authority and also by making it consistent with the provisions of the Constitution. By this amendment in the rules it cannot be said that the President has given up all his powers under Article 310 which the Constitution has conferred on him, nor, indeed, could he do so. Considering the constitutional provisions it is not possible to reach such a conclusion. It is an established principle that usurpation of constitutional power is as bad as its abdication. The President has to uphold and preserve the Constitution,

23. In view of what we have so far said, it follows that the President having passed the impugned order by virtue of his powers under Article 310 read with proviso (c) to Clause (2) of Article 310, the said order cannot be challenged by applying to it the provisions of Civil Services (Classification, Control and Appeal) Rules. Therefore, it cannot be held that the impugned order was passed in breach of these rules. No doubt, the petitioner is deprived of important concessions, including right of appeal, which were available to him under the said Rules, but this grievance cannot be helped and is not relevant for consideration.

24. It was next urged that the order should be considered as contravening Article 311(2) of the Constitution in view of the fact that there was no material from which the President could be satisfied that it was not expedient to give to the petitioner an opportunity of showing cause against his proposed dismissal. In other words,this means that satisfaction of the President in terms of Article 311(2), proviso (c), should be made a justiciable issue before the Court, and the satisfaction of the President should be proved as an objective fact before this Court upholds the impugned order. It is not necessary to spend many words for rejecting such contention. Article 311 provides that no person in the services mentioned therein shall be dismissed until he has been given a reasonable opportunity of showing cause unless 'the President is satisfied that in the interest of the security of the State it is not expedient to give to that person such, an opportunity'. It is obvious that what the above provision of the Constitution requires is satisfaction of the President about the expediency of not giving an opportunity to the employee concerned in the interest of the security of the State. To make such matter a justiciable issue would mean that the Court should be also satisfied about such expediency and then only the order of the President passed under the powers given by the Constitution should be upheld by the Court. This would amount to substituting satisfaction of the Court in place of the satisfaction of the President. It is possible that what may satisfy the President may not satisfy the Court. What may be found expedient by the President may not be so found by the Court. If Courts were to demand proof of such satisfaction and the evidence of material on which the satisfaction was reached, the Courts would be virtually depriving the President of the powers and confidence which the Constitution in its wisdom has reposed in the President.

25. It was then urged with much stress of sentiment that by interpreting the powers of the President in the manner we have done, the Court will invest the President with uncontrolled powers over the services and that such reading of the Constitution would lead to disastrous results leaving no protection to services. It was urged that our Constitution, democratic as it is, could not have contemplated such a situation.

26. We agree that our Constitution does not contemplate any disastrous results. The Constitution in its wisdom has reposed confidence in and invested powers in relation to services on the President who is the highest dignitary of our State and in whom the executive Government vests. The Constitution trusts that the President will always act with full justice to all and in the interest of the State of which he is a caretaker. The integrity and responsibility to carry on the executive Government are the only checks by which the Constitution is satisfied. Moreover, this doctrine of services being at the pleasure of the executive head of the State is not new and is not embodied as a novel theory in our Constitution. This rule is established in English common law and is also recognised in the American Constitution. Shenton v. Smith (1895) AC 229 Myers v. United States (1926) 272 US 52.

27. Thus, we hold that the objections (a) and (b) as reproduced above have no force.

28. Next we come to the objection (c) based on the contention that it was imperative for the President to consult the Public Service Com-mission before passing the impugned order. This objection is obviously based again on a misapprehension about the rules in that connection. The President has made necessary change in the Union Public Service Commission (Consultation) Regulations under Notification No. 18/10/, 54 - Ests (B) dated 10-7-1954 which provides that

'notwithstanding anything hereinbefore contained in this regulation, it shall not be necessary for the President to consult the Commission in any case where the President proposes to make an order of dismissal, removal or reduction in rank after being satisfied that such action is necessary in the interest of the security of the State.'

The order of dismissal passed against the petitioner is already reproduced above. The petitioner was dismissed on the President being satisfied that his retention in the service is prejudicial to the national security and that therefore he should be dismissed from service. The Constitution gives a power to the President to make rules in the matter of consultation with the Public Service Commission. In view of these rules it was not necessary for the President to consult the Public Service Commission in the case of the petitioner. In this connection the petitioner had brought to our notice a decision of the Division Bench of this Court reported in Pandurang v. Divisional Mechanical Engineer 1957 Nag LJ 201. The correctness of the decision was canvassed before us by the other side, but it is not necessary to go into that question. On facts that case is distinguishable from the one before us. Secondly, the said decision dealt with regulation 5 (1) and not regulation 5 (2) with which this case is concerned. It has also to be noted that the present action cannot be considered as a disciplinary measure which is provided for by the Civil Services (Classification Control and Appeal) Rules. This action was taken by the President in the interest of the security of the State and even an opportunity to show cause was denied to the petitioner as the President was satisfied that in the interest of the security of the State it was not expedient to give to the petitioner such an opportunity. The only basis for the order is the satisfaction of the President and we cannot accept that consultation with the Public Service Commission in a case of this type is made necessary by the Constitution. If it is held that Article 320(3)(c) governed this case and it was incumbent on the President to consult the Public Service Commission, it would only mean that the President will have to be guided or controlled by the advice which the Public Service Commission may give on such consultation. This would result in a conflict between the two provisions of the Constitution, and such conflict cannot be conceived when two provisions of the Constitution have to be interpreted. We, therefore, hold that it was not necessary for the President to consult the Public Service Commission and the impugned order is not in any way bad because the Public Service Commission has not been consulted.

29. The last objection of the petitioner is based on Article 14 of the Constitution. What we note is that this power has been exercised by the President under the provisions of the Constitution and no provision of the Constitution can be considered as being contravening any other provision of the constitution. Article It of the Constitution guarantees equality before law or the equal protection of the laws within the territory of India. Article 13 provides that all laws in force which are inconsistent with the provisions of Part III of the Constitution shall be void. The said Article also provides that the State shall not make any law which takes away or abridges the rights conferred by Part III of the Constitution. Article 13 has thus no application to the Articles of the Constitution. Therefore, it cannot be said that the order of the President which was passed by him under the provisions of the Constitution offends Article 14 of the Constitution. It is wrong to say that in passing the impugned order the President has committed breach of any law of the land. It is also not correct to say that the petitioner has been singled out in contravention of the provisions of Civil Services (Classification Control and Appeal) Rules. The President has taken this step in the interest of the security of the State, and this power the President possessed under the Constitution. Rule 52 of Civil Services (Classification Control and Appeal) Rules is not also void, as being in contravention of Article 14 of the Constitution. As already observed above, the rule only reproduces the power of the President given to him by the Constitution. There is no substance in the grievance of the petitioner that he is discriminated or treated unequally before law.

30. As petitioner was challenging the order of the President, an objection was raised by the respondent regarding jurisdiction of this Court under Article 226, in the matter of quashing such order, or giving relief to the petitioner in the face of the order of the President.

31. The case was argued fully on merits. We have chosen to give our decision on merits of the case. In this view, it is not necessary to decide the question of jurisdiction

32. In the result, the petition fails and is dismissed with costs. Only one set of costs will be allowed.

J.R. Mudholkar, J.

33. I have had the advantage of reading the order proposed by my learned brother and I agree with him that the petition should be dismissed. I will however briefly state my reasons for coming to that conclusion.

34. The petitioner who was employed in the office of the Accountant-General of Madhya Pradesh as an Upper Division Clerk was served with an order on 23-1-1957 passed by the President of India dismissing him from service. That order has been reproduced in the proposed order of my learned brother and it would appear from it that the petitioner's services were terminated on the ground that it was prejudicial to national security to retain him in service any longer. It is common ground that the petitioner was not given an opportunity to show causeagainst the action taken against him and that he was denied this opportunity because the President was of the opinion that in the interest of national security it was not expedient to give him such an opportunity.

35. The first ground on which the President's order is challenged is that the petitioner has been deprived of certain rights conferred upon him by Civil Services (Classification, Control and Appeal) Rules, and that the President's order is consequently unconstitutional. It is sufficient to say that where, as here, the President exercises his pleasures under Article 310 of the Constitution, he is bound only by the express provisions of the Constitution such as Article 311 and not by any rules. I may mention that this is precisely the view which was taken in Misc. Pet. No. 1716 of 1951, D/ 6-8-1952 (H) by a Division Bench of the Nagpur High Court to which I was a party and in several other cases. Further, this is clear by comparing the provisions of Article 310 with the corresponding provision, Section 96B in the Government of India Act, 1919. Whereas, under the Constitution the President's pleasure is made subject only to the provisions of the Constitution, under Section 96B of the Government of India Act, 1919, that pleasure was made subject not only to the provisions of the Constitutional Act but also of the rules made thereunder. There is therefore no substance in the first contention.

36. The next point taken is that there was no material before the President from which he could be satisfied that the particular action taken by him against the petitioner was necessary to be taken in the interest of national security. I would like to point out that, in the first place, Article 310 of the Constitution does not require that the President must, before exercising his pleasure, be. satisfied that the continuance in service of a particular public servant is detrimental or prejudicial to national security. This is only a requirement of the Central Civil Services (Safeguarding of National Security) Rules, under which the particular order was apparently passed. But these rules cannot letter the President's powers under Article 310 of the Constitution. The satisfaction of the President is only subjective and therefore where the President has expressed that he is satisfied about a particular matter the Court has no power to go behind it. We must distinguish cases under the Central Civil Services Rules from cases under a law authorising preventive detention made by virtue of the powers conferred by Article 22 of the Constitution, because in the latter class of cases, furnishing of grounds is made obligatory by the Constitution itself and therefore the Court can enquire into the fact of satisfaction of the authority making an order of detention.

37. Then it was contended that the Public Service Commission was not consulted by the President as required by the provisions of Article 320(3)(c) of the Constitution. It may be pointed out that under the regulations made by the President subsequent to the coming into force of the Constitution, the President has by virtueof the powers conferred upon him by the Constitution to be satisfied that in cases which fall in the category in which the petitioner's case falls it shall not be necessary for the Public Service Commission to be consulted. I am aware that in 1957 Nag LJ 201 (G) there is an observation by a Division Bench of this Court to the effect that no regulations of this kind were framed by the President after the coming into force of the Constitution. I may however point out that an application for review of the decision has since been made to this Court in which the correctness of this statement of fact is challenged. In support of this challenge true copies have been filed of the proceedings taken by the President after the commencement of the Constitution. From a perusal of those documents it is clear that the statement made in Pandurang's case (G) in this regard is factually incorrect.

38. Finally it is contended that the action taken by the President is in contravention of the guarantee of equal protection before the law contained in Article 14 of the Constitution Inasmuch as the action taken was capricious. In my view there can be no question of discrimination whatsoever in this case. The Central Civil Services Rules are applied to all Central Government servants and not to the petitioner alone. Under those rules it is open to the President to take action against any Central Government servant whose retention in service is found to be prejudicial to the security of the State. In point of fact, an enquiry was made before the action was taken by the President and therefore there is no room for the contention that the action is capricious.

39. For these reasons, the petition is dismissed with costs.

40. Petition dismissed.


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