1. As regards the contention of the Union that the plaintiff held 'post connected with defence' and that the grievance of the plaintiff is not justiciable, it is necessary to refer to the provisions of Arts. 310(1) and 311 of the Constitution which provide as follows :-
'310. (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 .....'
'311. (1) No person who is a member of a civil service of the Union or an all-India service or a 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.'
2. It is obvious that Art. 310(1) deals with tenure of office of persons holding posts and offices under the Union or a State. It is also patent on the language of that article that the tenure as fixed under the article can only be affected or altered by provisions contained in the Constitution itself. By the language of the article it is made impossible for any other statute made by Parliament or State Legislature to provide for different tenure of office. The limitation as regards the tenure, if any, must be found in the Constitution.
3. Article 311, which provides for protection of persons employed by the Government, can only be available to specific persons mentioned in that article. The protection provided by Art. 311 is protection given to a member of (i) a civil service of the Union or (ii) an all-India service or (iii) a civil service of a State or (iv) a person who holds a civil post under the Union or a State. All these specific persons and/or members of each class mentioned in Art. 311 are also mentioned Art. 310. It is, however, significant that Art. 310 makes specific reference to
(a) 'a member of defence service' and
(b) 'persons who hold posts connected with defence.'
4. No reference is made to 'a member of defence service' and 'persons who hold posts connected with defence' in Art. 311. Members belonging to these classes have been specifically taken out of the provisions of Art. 311 with intent to deprive them of the protection given to others under Art. 311.
5. Having regard to the aforesaid position, Mr. Gauba contended that the plaintiff held 'a civil post under the Union' and was, as such, entitled to protection under Art. 311 and was entitled to a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. This, of course, is a new contention and is not mentioned in the plaint. It is not included in the statutory notice given under S. 80 of the Code of Civil Procedure. This contention came to be made because on the amendment of the written-statement the Union for the first time in August 1958 relied upon Art. 310 as complete defence to the plaintiff's suit. I have allowed Mr. Gauba to argue on the footing that this contention was included in the plaint only because the plaintiff has had long service with the Government of India and it was necessary to see if the defence raised by the Union of India on the footing of Art. 310 was correct.
6. As regards the nature of his employment, it is admitted by the plaintiff that he was a civilian employee in defence service. It is also admitted by the plaintiff that his salary and allowances came out of the defence expenditure. The description of rules on which the plaintiff relies indicates that they are made with reference to persons in defence service. These rules are described as 'Army Instructions.' These are rules relating to civilians paid from defence expenditure. These rules are admittedly not made for any person who is not holding a civilian post paid from defence expenditure. Mr. Gauba contends that since the plaintiff is described as a civilian employee in defence service he is holding a civil post under the Union. This contention appears to me to be ill-founded. A person holding 'civil post under the Union' is classified separately from 'a person holding any post connected with defence' in Art. 310(1) of the constitution. On comparison of the provisions of Arts. 310(1) and 311 it is clear that the person described as 'a member of defence service' or 'holding any post connected with defence' has been altogether excluded from Art. 311. The tenure of office of such a person under Art. 310(1) was 'at pleasure' and yet he was not intended to be given any protection as provided under Art. 311. That is the irresistible conclusion one reaches by reason of specific exclusion of such a person from Art. 311.
7. It is not contention of Mr. Gauba that the plaintiff is not holding a post connected with defence. On the contrary the plaint proceeds on the footing ant it is admitted that the plaintiff holds a post connected with defence. In my opinion 'person holding a post connected with defence' cannot be stated to be included in the class of persons 'holding civil post under the Union' if the provisions of Art. 310(1) are read correctly. I do not agree with the contention of Mr. Gauba that the plaintiff held a 'civil post under the Union' within the meaning of these two articles. The only class within which the plaintiff falls is the class which is described in Art. 310 as 'holds any post connected with defence.' I accordingly hold that the plaintiff is not entitled to any protection under Art. 311 and is not entitled to any reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
8. In this connexion Mr. Kher has relied upon the decision of this Court in the case of Chhandra Bhan v. Union of India : AIR1956Bom601 where in the first Court (S. T. Desai, J.) considered and construed the provisions of Art. 310 in regard to 'a member of defence service.' The relevant observations in that case are as follows :-
'Now it is obvious that Art. 310 so far as it relates to a member of the defence service lays down in terms both express and explicit that in the absence of any provision of the Constitution and subject to the exception to which I shall presently refer :
'every person who is a member of a defence service or holds any post connected with defence ... holds office during the pleasure of the President.' The limitation or exception contained in the initial part of the article has no bearing to any such case ... I find that Art. 310 inevitable leads to the conclusion that a member of the defence service is dismissible at will unless he is protected by any of the restrictions and limitations provided for by the article itself. Restrictions and limitations on the exercise of the 'pleasure of the president' as I have already pointed out are not applicable to the case of the plaintiff and his case would therefore be clearly covered by the rules relating to service durante bene placito and on that view of the matter the claim made by the plaintiff would not be justiciable under Art. 310, if it fell under that article because he could have no right of action against the Union of India for wrongful dismissal.'
9. As regards the rules of procedure made under the Army Act for giving a complete hearing to an alleged defaulter in his defence it was observed in that decision as follows :-
'Then again the sections of the Army Act and the Rules and Regulations to which I have referred do not, in my judgment, lay down any stipulations as to the tenure of service. Moreover as I shall have occasion to point out later on in my judgment these sections do not in any way affect the rule relating to tenure of service being terminable at will ... Therefore, even if I were to accept the contention that Art. 310 permits any statute of Parliament modifying the general rule contained in it so far as it affects the defence personnel, the conclusion would still have to be that the tenure of service was during the pleasure of the President.'
10. Referring to the general rule that the tenure of office of serviceman was durante bene placito it was observed that :-
'There is another consideration of the matter. It seems to me that the principle underlying the rule should apply with greater force to a member of the defence service than to a civil servant. Article 311 of the Constitution and the provisions of S. 240, Government of India Act, 1935, in which there is no reference at all to a member of the defence service are to a degree illustrative of the principle.'
11. After considering all the provisions applicable to a person in defence service as also to persons holding civilian posts in defence service it was held in that case that the tenure of office of such a person was at pleasure of the President and any grievance in respect thereof was not justiciable.
12. The judgment of S. T. Desai, J., came before the Appeal Court in Chandra Bhan Varma v. Union of India [(1958) O.C.J. Appeal No. 52 of 1956, decided by Chagla, C.J., and Mody, J., on 11 April, 1958 (Unrep.)] and Chagla, C.J., also agreed with the ratio of that judgment as correct and held that on a true construction of Art. 310 as regards a member of the defence service the tenure of office must be at pleasure of the President and any grievance in that connexion was not justiciable.
13. The provisions of these articles came to be considered in the case of Subodh Ranjan v. N. A. O. Callaghan : (1957)ILLJ69Cal . The question there also related to a civilian employed in defence service holding position similar to the plaintiff in this case. It was there also held that a civilian employed in defence service was not entitled to protection under Art. 311 and that his tenure of office was at pleasure of the President and the grievance made by him was not justiciable.
14. The question whether a civilian employed in defence service could be classified as a person holding a civil post under the Union came to be considered by Kapur, J., in the case of Dass Mal v. Union of India . The plaintiff in that case was a civil clerk employed in the defence services. He was not governed by the provisions of the Army Act. The contentions raised on his behalf were same as the contentions raised before me by Mr. Gauba. After considering the relevant provisions of the Government of India Act, 1935, as also Arts. 309, 310 and 311 of the Constitution, the conclusion that was reached appears in the following words.
'In Art. 311(1) a member of a defence service or a person who holds any post connected with defence has been omitted, and in my view this omission has only one meaning that the protection afforded under Art. 311(1) is not available to the appellant Dass Mal.'
15. The contention raised on behalf of the plaintiff in that suit that he held 'a civil post under the Union' and was entitled to protection of Art. 311 was negatived.
16. In connexion with the Army Instruction No. 212/1949 Mr. Kher referred me to a decision in the case of Atindra Nath v. G. F. Gillot 1956 I L.L.J. 17. What appears in the decision seems to me to be applicable in all respects to the case before me.
17. The information given to me as regards the 'Army Instructions' is nothing more than the production of 'Army Instructions' as evidence in this case. Mr. Gauba contends that these rules appearing in the Army Instructions must have been enacted under S. 241 of the Government of India Act. Neither side, however, is in a position to give me correct information as to under what provisions these Army Instructions have been framed. It appears to me that these are the subject-matter of a Government resolution and made for the purpose of guidance of military authorities in connexion with civilians employed in defence services. These rules have no binding force in themselves. These rules are only directory rules. They do not appear to have been made under provisions of any particular statute. These rules have in any event no force of affecting the provisions of Art. 310 regarding the tenure of office of persons employed in the service of Government of India or State. The tenure of office of persons employed in such service continues to be at pleasure of the President or the Governor or the Rajpramukh as the case may be.
18. In this connexion Mr. Kher has referred me to the judgment of Chagla, C.J., in T. V. Ravindran v. C. M. Patel [(1956) Special Civil Application No. 1061 of 1956 decided by Chagla, C.J., and Dixit, J., on 4 July, 1956 (unrep.). That was a case of dismissal of an employee from Ordnance Depot at Ambranath. The contention raised before the Division Bench was that the provisions of the Industrial Disputes Act which were admittedly applicable even to the Government employees came in the way of dismissal of the petitioner in that case and that the dismissal was, therefore, not effective. Rejecting these contentions it was held that by reason of the provisions of Art. 310 the tenure of office of a Government servant employed even in civil service continued to be at the pleasure of the President or the Governor, that even by legislation (viz., as in that case the Industrial Disputes Act) Parliament had no authority to derogate from the provisions of Art. 310 of the Constitution. The petitioner's petition was accordingly dismissed in that case.
19. Having regard to the decisions referred to by me above, I have come to the conclusion that the plaintiff does not hold a civil post under the Union and is not entitled to protection of Art. 311. I have also come to the conclusion that the Army Instructions referred to in the plaint are not binding on the Union and the non-observance of the rules contained in these Army Instructions do not give any cause of action to the plaintiff. The validity of dismissal of the plaintiff is not justiciable and this Court has no jurisdiction to give any relief to the plaintiff.
20. The third contention raised by Mr. Kher related to the statutory notice given by the plaintiff under S. 80 of the Code of Civil Procedure. This notice admittedly does not refer to the reliefs claimed by the plaintiff in this suit. That notice only indicated that the plaintiff would be claiming damages against the Union and did not indicate that the declarations as mentioned in the plaint would be sought against the union. The plaint and the notice do not refer to Art. 311 of the Constitution.
21. Mr. Gauba has referred me to the commentary of Sir Dinshaw Mulla on S. 80 and also to the decision in Secretary of State v. Chimanlal Jamnadas (1941) 44 Bom. L.R. 295. He says that this notice must be construed liberally and is valid. Having regard to my conclusions on the main contentions of the parties as hereinfore mentioned, I do not propose to decide the issue as to whether the notice under S. 80 in this case is improper.
22. In the result the suit is dismissed with costs.