1. These eight appeals arise out of common Judgment of the learned District Judge, Raichur, allowing a batch of appeals filed by the conductors, working in the Mysore Government Road Transport Department in Raichur district, who had been dismissed from service. As the same questions arise in these appeals, they are dealt with in one judgment. The respondents were working as conductors in the Hyderabad Road Transport Department and after the new Mysore State was formed, they were allotted to Mysore and continued to work as conductors in Raichur Depot of the Mysore Government Road Transport Department. After departmental enquiry, they were dismissed by the Divisional Controller of the Mysore Government Road Transport Department, who will be hereinafter referred to as the Controller. After the said order of dismissal was confirmed by the General Manager, they filed suits in the Court of the Subordinate Judge, Raichur, for declaration that the order of dismissal passed by the Controller was illegal and void and they continued to be in service and were entitled to full pay. The case of the respondents was that they has been appointed by the Superintendent, Road Transport Department of the erstwhile State of Hyderabad (who will be hereinafter referred to as the Superintendent), and the said Superintendents was the head of the Road Transport Department. The contention of the respondents was the Art. 311(1) of the Constitution of India guarantees to them that they shall not be dismissed or removed from service by an authority subordinate to the authority who appointed them and, as the Superintendent was the head of the Road Transport Department, they could only be removed by the head of the Mysore Government Road Transport Department, i.e., the General Manager, and not by the Controller who is a subordinate authority. The trial Court dismissed all the suits. The learned District Judge in appeal held that in these cases Art. 311(1) of the Constitution had been violated and allowed the appeals holding that the dismissal of the respondents was null and void. In R.S. As. Nos. 117 to 120 of 1967, the appellant is the Mysore State Road Transport Corporation who was defendant 2 in the trial Court. R.S. As. Nos. 881 to 884 of 1967 are by the State of Mysore who was defendant 1 in the trial Court. These appeals are directed against the said judgment and decree passed by the learned District Judge allowing the appeals of the respondent-conductors.
2. Sri Mahendra, learned counsel appearing on behalf of the Mysore State Road Transport Corporation, which will hereinafter be referred to as the Corporation, has contended that after 1 November, 1956, the respondent-conductors came over to the new Mysore State and that as per S. 116 of the States Reorganization Act of 1956, the respondents shall be deemed from 1 November, 1956 to have been duly appointed by the competent authority in the new State of Mysore. The competent authority to appoint and dismiss conductors in the new Mysore State, is the Divisional Controller and as such, there is no violation of Art. 311 of the Constitution. Sri Mahendra also argues, even without taking into account S. 116 of the States Reorganization Act, the question of subordination referred to in Art. 311 arises only when both the authorities exist. Here, in the new State of Mysore, there is no post of Superintendent, Road Transport, and hence it cannot be said that Divisional Controller is subordinate to the Superintendent and as such there is no violation of Art. 311 of the Constitution. Sri Mahendra also contends that the respondents are entitled to get a declaration only if the posts exist. Here, the Mysore State Road Transport Corporation, was constituted on 31 July, 1961 and all civil posts in the Mysore Government Road Transport Department came to be abolished, and, as after 1961 there was no such civil post, the prayer asked for by the respondents that they still continue in the service of the defendants cannot be granted.
3. Sri Ramadas, learned counsel appearing on behalf of the State of Mysore, has adopted the arguments of Sri Mahendra.
4. Sri Jagirdar, learned counsel appearing on behalf of the respondents, has supported the judgment of the learned District Judge. He argues that it has been admitted by the appellants that the Superintendent, who appointed the respondents, was the head of the Road Transport Department of the erstwhile Hyderabad State and the only authority above him was the Government. In the Mysore Government Road Transport Department, the General Manager was the head of the department; and the General Manager being the equivalent authority, was the only person who was competent to dismiss the respondents. The Divisional Controller was admittedly and officer subordinate to the General Manager, and as such he had no competence to dismiss the respondents. He argues that S. 116 of the States Reorganization Act does not apply to the present case and there has been no fresh order of appointment of the respondents when they came over to the new State of Mysore. Sri Jagirdar has strongly relied on a decision of this Court in R.S.A. No. 627 of 1964 wherein, on similar facts, where the conductor had been appointed by the Superintendent, this Court held that the Divisional Controller had no competence to dismiss him and there was violation of Art. 311 of the Constitution. Sri. Jagirdar also contends that Sub-section (7) of S. 115 of the States Reorganization Act guarantees that the respondents' conditions of service shall not be varied to their disadvantage. As under their service conditions, the respondents could only be removed by the head of the department, as per the guarantee given to them by Sub-section (7) of S. 115 of the States Reorganization Act, the respondents cannot be removed by any person other than the head of the Transport Department.
5. The first contention of Sri Mahendra is that under S. 116 of the States Reorganization Act, the respondents are deemed to have been appointed by the competent authority in the new State of Mysore, who is the Divisional Controller. The said Controller is competent (to appoint) the respondents and also to dismiss them. It may be mentioned that this point has not been raised by the defendants in their written statement. No such issue was framed in the trial Court nor was any such contention advanced in both the Courts below. It may further be mentioned that this point has not even been raised in the grounds of appeal before this Court. As Sri Mahendra contends that this is purely a question of law which can be raised by him before this Court, I will briefly deal with the same. It may be pointed out that S. 116 of the States Reorganization Act uses the words 'deemed to have been appointed' which shows that they have not been really so appointed. That this is so, is laid down by the Madras High Court in V. K. Balakrishnan v. State : AIR1957Mad769 . Discussing the object of S. 116 of the States Reorganization Act, Rajamannar, C.J., speaking for the Bench, in Para. 3 has observed as follows :
'The object of S. 116(1) of the Act was to regularize what otherwise would have been an irregular state of affairs so far as public services were concerned. On the appointed day there would be officers belonging to the Madras service holding office or discharging duties of posts and offices in the area which in that day would stand transferred to a new State, Kerala of Mysore.
Such officers would not cease to belong to the Madras service. A question might arise as to their competency to act as officers in an area which was no longer part of Madras. It is to overcome this difficulty that the aid of a fiction is sought and such officers are deemed as from that day, that is, 1 November, 1956, to have been duly appointed to their respective posts and officers by the Government of the new State.
The fact that they are deemed to have been appointed shows that they really have not been ...'
6. Apart from this, it is will-settled that the constitutional guarantee given to a civil servant by Art. 311 of the Constitution cannot be taken away either by the legislature by any law or by any rule made under Art. 309 by the Governor. This has been laid down by the Privy Council in Rangachari v. Secretary of State . It has again been reiterated by their lordships of the Privy Council in Northwest Frontier Province v. Suraj Narain Anand . Various High Courts have also followed the said decisions of the Privy Council. In Gurmukh Singh v. Union of India , Falshaw; C.J., speaking for the Bench, has pointed out that in no circumstance can an order of dismissal be passed by an officer of lesser rank. Any rule or statute which permits such an action must be held to be ultra vires as infringing the provisions of Art. 311(1) of the Constitution. Similarly, in Mahadev Prasad Roy v. S. N. Chatterjee [A.I.R. 1954 Pat. 285], Ramaswami, J., as he then was, has held that neither the legislature nor the Governor or Rajpramukh may enact a rule under Art. 309 vesting power of dismissal in a subordinate authority, an authority subordinate in rank to the authority which had appointed the civil servant, and the constitutional protection contained in Art. 311 could not be wiped out and destroyed by the exercise of the power conferred under Art. 309. I am therefore of opinion that there is no merit in the first contention advanced by Sri Mahendra.
7. In support of his second contention Sri Mahendra has strongly relied on the judgment of Krishnan, J., in Antersings v. State of Madhya Pradesh [1960 - II L.L.J. 413]. In the said decision, a police constable who was appointed by the Deputy Inspector-General of Police of the erstwhile Indore State, was continued in the service of Madhya Bharat State without any order of fresh appointment. His removal from service from the Superintendent of Police, Indore, was held to be not bad as violating Art. 311(1). His lordship held that at no moment the Deputy Inspector-General of the erstwhile Indore State co-existed with the Superintendent of Police in the district of Indore and therefore, the Superintendent of Police in the State of Madhya Bharat was not an authority actually subordinate to the Deputy Inspector General in the erstwhile Indore State. The same view had earlier been reiterated by Krishnan, J., in Ragunath Singh v. State of Madhya Bharath [1959 - II L.L.J. 187], wherein his lordship held that as the appointing authority in the erstwhile State was defunct the petitioner must show that the removing authority was subordinate to the appointing authority otherwise, Art. 311 was not attracted. In Dulal Ranjan Aditya v. R. B. Bose and others [1959 - I L.L.J. 22], a single Judge of the Calcutta High Court, Mukherji, J., held that the expression 'an authority subordinate' indicated an existing subordination and not where the authority dismissing the civil servant at the time of dismissing suffers no subordination because the post of the former appointing authority had ceased to exist. In arriving at the said conclusion Krishnan, J., relied on : 1SCR1015 . But, as pointed out by Sri Jagirdar, the said Supreme Court decision refers to merger or absorption of States and not to integration of States under the States Reorganization Act. The conditions of service which applied to the civil servant in the old State, due to merger, were no longer in force and the new State entered into fresh contracts with the civil servants. I may also mention with respect, that it is not possible for me to agree with the view enunciated by the said Madhya Pradesh and Calcutta decisions. If that view is correct, simply because the appointing authority ceases to exist, it would actually mean the denial or taking away of the constitutional right given to the civil servants, under Art. 311(1) of the Constitution. In my opinion, a civil servant should not be deprived of this valuable constitutional guarantee given to him under Art. 311(1) for no fault of his, simply because, the authority which appointed him had ceased to exist. I may also mention that this point also has not been pleaded by the appellants in their written statement, nor was it urged in both the Courts below.
8. I am inclined to agree with respect with the view taken by the various High Courts in the decisions relied on by Sri Jagirdar in answer to the appellants' second contention. In Gurmukh Singh v. Union of India (vide supra) referred to earlier, Falshaw, C.J., speaking for the Bench, in Para. 14 has observed as follows :
'In my opinion the only proper course when the question of dismissing the plaintiff in this case came up was that if there was no officer of the rank of Deputy-Inspector General, then the order of dismissal should have been passed by the Inspector-General himself. In my opinion, the meaning of Art. 311(1) is that if there is no officer of equal rank to the appointing officer available, then the order will have to be passed by an officer of superior rank. In no circumstances can such an order be passed by an officer of lesser rank.'
9. In the above case, the petitioner was appointed as assistant sub-inspector of police in Delhi State by the Deputy Inspector-General of Police. The post of Deputy Inspector General ceased to exist. The petitioner was dismissed by an order of the Senior Superintendent of Police who has been vested with the powers of the Deputy Inspector-General. Their lordships held that the dismissal contravened Art. 311(1), since a Superintendent of Police even where he is designated senior Superintendent is subordinate to the Deputy Inspector-General. In Anukul Chandra Mondal v. Commissioner of Income Tax : AIR1962Cal3 where the officer was appointed by the head of the department and thereafter he was transferred to some other department, the Calcutta High Court held that as the person was appointed by the head of one department, he cannot be removed except by a person not lower in rank to the head of the department to which he was transferred. In Ramratan Balachand v. State of Madhya Pradesh : AIR1964MP114 , in a Division Bench decision, Dixit, C.J., held that where the sub-inspector of police was appointed by the Inspector-General of Police of Rajasthan and in consequence of reorganization of States, he was allotted to the State of Madhya Pradesh, he could be dismissed by the corresponding authority of that State; where he was dismissed by the Deputy Inspector-General of Police who was appointed to hold charge of current duties of the Inspector-General of Police in addition to his own, it was held that as he was appointed and authorized to perform the current duties of the Inspector-General of Police without being clothed with his rank, the order of dismissal was bad and inoperative. With respect, I would prefer to follow the view taken by the said decisions mentioned above, in preference to the earlier decisions cited by Sri Mahendra.
10. As contended by Sri Jagirdar, the facts of the case in R. S.A. No. 627 of 1964 decided by this Court are exactly similar. In that case also, the conductor has been appointed by the Superintendent, Road Transport Department of the erstwhile State of Hyderabad. After the reorganization of States, when he was an employee of the Mysore Government Road Transport Department, he was dismissed by the Divisional Controller. He filed a suit for declaration that the order of his dismissal was illegal and inoperative and consequently, he continued in service and was entitled to arrears of salary, and claimed arrears of salary. Somnath Ayyar, J., held that the Superintendent of the Road Transport Department of the erstwhile Hyderabad State was equivalent to the post of the General Manager of the Mysore Government Road Transport Department and, as the plaintiff was dismissed by the Divisional Controller, who was a subordinate of the General Manager, the dismissal was bad. His lordship, while dismissing the appeal, observed as follows :
'The admissions made by defendant 2 in the reply to the interrogatories administered by the plaintiff was that the plaintiff was appointed by the Superintendent of the Road Transport Department in the erstwhile State of Hyderabad. What was further admitted by defendant 2 was that the Superintendent of the Road Transport Department in the state of Hyderabad was subordinate to none except the Government of the State of Hyderabad. So, it is clear, as rightly found by the Courts below, that the post in the Mysore Government Road Transport Department which was equivalent to the post of a Superintendent of the Road Transport Department in the erstwhile State of Hyderabad was the post of the General Manager of the Mysore Government Road Transport Department. But the plaintiff was dismissed by the Divisional Controller in the Mysore Government Road Transport Department and the Divisional Controller was admittedly subordinate to the General Manager in that department.'
11. The facts of that case are exactly similar to the facts of the instant case and the said decision applied fully to the instant case But it is contended by Sri Mahendra that the various legal points urged by him in this case have not been urged or considered in the said judgment and as the points raised by him are important questions of law, the matter may be referred to a Division Bench for an authoritative ruling. As the various points urged by Sri Mahendra, were not urged before Somnath Ayyar, J., the question of considering these points in that case did not arise. It no doubt goes to the credit of Sri Mahendra that he has discovered new legal points and has ably argued them. It is true these points were not urged either in R.S.A. No. 627 of 1964 or in the instant case before the trial or appellate Courts. But the mere fact that the points has not been urged in R.S.A. No. 627 Of 1964 when the Mysore State Road Transport Corporation had the opportunity and failed to do so, is no ground to refer this case to a Division Bench. Besides, I have dealt with the new points and for the reasons mentioned above, I am of opinion that there is no substance in the said contentions and hence I do not consider it necessary to refer the matter to a Division Bench for decision.
12. Finally, it was contended by Sri Mahendra that the respondents are entitled to get a declaration that they continue in service only if the posts exist. He argues that in this case, since the Mysore State Road Transport Corporation has been constituted on 31 July, 1961 and all civil posts of the Mysore Government Road Transport Department have been abolished, the prayer of the respondents for a declaration that they still continue in service of the defendants cannot be granted. It may be mentioned that this contention has not been put forward and pleaded by the appellants. No issue on this point has been raised in the case and the respondents have not been called upon to meet the said contention and given an opportunity to have their say. I do not also have the benefit of the views of the Court below on this aspect of the matter. It is sufficient to say that by rules 5 and 6 the Corporation has succeeded to the rights and liabilities of the Mysore Government Road Transport Department. By rule 7, the members of the staff of the Mysore Government Road Transport Department have a right to opt to serve under the corporation. If the services of the respondents had not been wrongfully terminated, they would have naturally opted serve under the Corporation and continued as conductors. Because of the default committed by the appellants and their wrongful dismissal, the respondents should not be penalized.
13. From the answers given by the appellants to the Traffic Officer, Class II, was in charge exercising the powers of the Divisional Controller of Raichur. Similarly, Sri Khadri was authorized to exercise the powers of the Divisional Controller. It is, therefore, clear that these officers were not even officers holding the rank of a Divisional Controller. It is also admitted by the appellants that the post of Divisional Controller was subordinate to the General Manager. There is no dispute that the Superintendent, Road Transport Department of the erstwhile State of Hyderabad, was the head of the department. As laid down by this Court in R.S.A. No. 627 of 1964, the equivalent post to that of the Superintendent of the Road Transport Department of the erstwhile Hyderabad State, in the Mysore Government Road Transport Department, was that of the General Manager. As per Art. 311(1) of the Constitution, only the General Manager of the Mysore Government Road Transport Department or any higher authority was competent to remove the respondents from service. The Divisional Controller being a subordinate of the General Manager was not competent to dismiss the respondents from service. The order of the Court below cannot be said to be illegal of erroneous.
14. In the result, there is no merit in these appeals and they are dismissed. In the circumstances of the case, there will be no order as to costs.