Somnath Iyer, J.
1. Respondents 3 and 4 who were Excise Assistant Inspectors in the service of the new State of Mysore were promoted as Excise Inspectors in December, 1958. The petitioner who is an Excise Assistant Inspector of that State seeks their removal by quo-warrantor from their posts and his own appointment by mandamus to one of them. He applies for a further direction that, after his appointment in that way, he should be placed, in the list of seniority, above respondent 5, who, although appointed as Excise Inspector in December, 1957, is, according to him, is junior in the service of the State.
2. The dates on which these four persons entered the service of the former State of Mysore and those on which they were promoted as Excise Assistant Inspectors arc set out in the following tabular statement:--
Rank inthe provisional Inter-State Seniority list.
Date of employment. Date ofpromotion as Excise Assistant Inspector
3. As the above statement discloses, the petitioner was employed in the service of the former State of Mysore only in the year 1945. Respondents 3 and 4 had been, by then, in the service of that State for seventeen and twenty years respectively. The employment of respondent 5 commenced nearly eighteen months before that of the petitioner.
4. Similarly, the petitioner was the last to be promoted as Excise Assistant Inspector. Whereas respondent 3 was so promoted in the year 1942, respondent 4 was promoted in the year 1939 and respondent 5 was promoted in the year 1945, the petitioner was not promoted until the year 1949.
5. It is, however, contended on behalf of the petitioner that respondents 3 and 4 were ineligible for promotion as Excise Inspectors since they had not passed certain departmental examinations which they were required to pass before becoming entitled to such promotion, and which the petitioner had himself passed. In regard to respondent 5, although it is not disputed that he had passed the required departmental examinations and was therefore properly promoted as Excise Inspector, it is contended that since the petitioner was confirmed as an Excise Assistant Inspector before respondent 5 was so confirmed, the position of the petitioner in the provisional inter-State seniority list should be higher than that of respondent 5.
6. The ineligibility of respondents 3 and 4 which is the foundation for the application for their removal by quo-warrantor was sought to be deduced from three Government orders made by the concerned governments from time to time-The first of those orders was made by the Government of the former State of Mysore on June 15, 1951. It alludes to the constitution of a committee to make suggestions in regard to the procedure to be adopted in the departments of the State in matters relating to confirmation and promotions of persons in the employment of Government and the grant of increments to them. While referring to the opinion of the Committee so appointed, this is what the Order stated:--
'Regarding promotion to next higher grade, the Committee were of opinion that though in the case of direct recruitment vacancies, the candidates would get three years' time to pass the required tests, in the case of promotion vacancies, the candidates should have already passed the tests requited for the higher grade before seeking promotion and that it is not necessary for such candidates to have possessed the minimum qualifications prescribed for such higher posts. Example: For promotion of an official from II Division to I Division, the candidate need not possess the higher minimum qualification of the first division, but he should have passed all the departmental tests required for the promotional vacancy before seeking promotion. This suggestion of the committee is also accepted.'
7. On June 21, 1955, a further order was made which reads:--
'In Government Order No. N. 8523-623-R and P. Section 3-52-19 dated 22nd September 1952, it has been ordered that the Heads of Departments may send Up recommendations for grant of exemptions to officials who were already 45 years of age On 15th June, 1951, or who are between 42 and 45 years of age and who have not yet passed the prescribed departmental tests for purpose of promotion to higher grade and that die Government may grant exemptions in such cases considering the merits of each case.
In practice, it has been found undesirable to grant such exemptions for the purpose of promotion of officials to the cadre of Accounts Superintendents. The Public Service Commission have, therefore, been consulted in the matter. The Public Service Commission are of opinion that no action is necessary on the proposal to exclude the technical examinations, viz., accounts and S.A.S. Examinations from the concessions contemplated in Government Order No. E. 2361-440-R. and P. Section 25-48-3, dated 15th June 1951 and Government Order No. E.8523-623-R. and P. Section 3-52-19, dated 22nd September 1952. The Controller, State Accounts Department, who has also been consulted in the matter, is of opinion that in the interest of efficiency of the Department there i: no need to grant exemption to any official from passing S.A.S. (parts I and II) Examination for purposes of promotion to- the cadre of Superintendents.
After considering the question in all its aspects, it is ordered that exemptions from passing the Departmental examinations or tests for purpose of promotion to higher grade should not be granted in any department.'
8. The relevant portion of the third Government Order made on October 31, 1957, reads:--
***** 9. The heads of Departments are requested to verify the Annexure II and obtain orders of Government should they find that any category of officials of their departments also have to pass-any of the examinations not mentioned therein. Orders as to the examinations to be passed before the officials are allowed to cross the efficiency bar or to gain promotion and confirmation; may, if necessary, be obtained in due course,
10. Officials who have completed 45 years of age on 1st November 1956 are exempted from passing the examination for purposes of earning the increments but not for promotion. A period of 2 years is allowed in the case of others for passing the examinations for confirmation or for earning increments in the existing grade. Such of the officials who have passed the tests formerly prescribed for particular grade in the respective regions will not be required to pass the new tests'.
Annexure II referred to in this notification requires that departmental officers of and above the rank of I division clerks and Excise Inspectors should have passed an examination in three-subjects, including General Law.
9. An official Memorandum was issued by the Government on November 1, 1958, by which the question as to which should be the departmental examinations that should be passed for a promotional vacancy after the reorganisation of the States was explained.
10. On November 27, 1957, Instriations were issued by the State that promotional vacancies occurring in regional cadres should continue to be filled up only by promotion of persons serving in that area and eligible for promotion under the rules in force in that area before November 1, 1956, which is the date on which the reorganisation of the States took place.
11. The petitioner's contention is that respondents 3 and 4 who were governed by the notifications to which we have referred but who had not passed the prescribed examinations could not claim promotion as Excise Inspectors and that their promotions made in plain contravention of those notifications entail their removal from their posts as usurpers.
12. On behalf of the State, it is submitted that promotions in the service of the State are governed by a multitude of considerations such as seniority, experience, continued good record, and that the petitioner, though otherwise eligible for promotion, was not so promoted for the reason that his record of service was nut uniformly good, his increment having been 'once stopped for negligence and indifference to Government work'.
13. It was argued that no person holding a civil post under the State could claim promotion to .1 higher position in public service as of right and that the decision of the State Or the promoting authority as the case may be refusing such promotion was merely an administrative decision, and therefore not justiciable in a Court of law.
14. Although in the affidavit which accompanied the writ petition, the petitioner depended On certain other circumstances in support of the allegation that the impugned promotions were actuated by mala fides, it was only in a supplemental affidavit which was not produced until after the State produced its counter-affidavit that the petitioner made a further allegation. He stated that respondent 3 was a brother-in-law of the Excise Minister of the State of Mysore and his unmerited promotion was attributable to that relationship.
15. The first endeavour made to support the petitioner's case rested on the provisions of Article 16(1) of the Constitution which, it was argued, enjoined the State to afford equality of opportunity to its citizens not only in the matter of the initial employment or appointment to a civil post of the State but also in the matter of promotion or advancement at every stage in the course of the career of a Government servant after his appointment.
It was contended that the expressions 'employment and appointment' occurring in Article 10(1) not only refer to the stage at which the Government servant enters Government service but take within their ambit his entire career in Government service, and that therefore, the equality ot opportunity guaranteed by Article 10 was not limited to the stage when a person enters Government service but should also be afforded at the stages when promotion is made from one position to another.
16. According to the petitioner, the promotion of respondents 3 and 4 as Excise Inspectors and the non-promotion of the petitioner to that position was an infraction of the right guaranteed by that Article, since the petitioner although he possessed the eligibility constituted by his having passed the required examinations was subjected to a hostile discrimination by the preferment to promotion of respondents 3 and 4 who did not themselves possess the prescribed qualifications.
17. In support of this contention, reliance was placed on Lachman Prasad Ram Prasad v. Superintendent, Government Harness and Saddlery Factory, Kanpur, : AIR1958All345 , Pandurang Kashinath More v. Union of India, : (1958)IILLJ38Bom and Sukhnandan Thakur v. State of Bihar, (S) AIR 1957 Pat 617.
18. The decision of the High Court of Allahabad, we do not think, can be of any assistance to the petitioner. What was held in that case was that the violation of certain rules made under Section 241 of the Government of India Act which, it was pointed out, had statutory force, could not be regarded as mere directions issued by the Governor Genera1-in-Council to his subordinates. In the Bombay case, the question which arose in an appeal from a decree made in a suit by an aggrieved employee whose services had been terminated, was whether his services had been properly terminated, although the learned Judge who decided that case made some observations in regard to the construction of Article 16(1) of the Constitution which, however, were, we think, un-necessary for the purposes of the decision.
In the Patna case, however, Ahmed J., ob-served that Article 16(1) of the Constitution not only guaranteed equality of opportunity to the employee at the stage of employment but also further guaranteed some kind of continuity of employment. That was a case in which one of the persons who held a civil post in the State of Bihar was retrenched from such service although in the cadre from which he was retrenched, he was not the juniormost. Ahmed J., was of the view that the retrenchment of the petitioner in that way could not be justified since it was incumbent on the State to decide on some rational basis as to who amongst its employees could be properly retrenched.
According to the learned Judge, It was not open to the State to select a particular employee for such retrenchment and to terminate his services in transgression of the provisions of Article 16(1) which prohibited the termination of the services of an employee in that way. Das C. J., as he then was, declined to express his opinion sas to the aforesaid construction of Article 16(1) but took the view that the employee in that case was not entitled to the writ sought by him to which, according to Ahmed, J., he was entitled.
On a difference of opinion between file two learned Judges, the case was referred to a third Judge. Although Ramaswarni J., to whom the case was so referred, agreed with the conclusion reached by Ahmed J., that the writ prayed for, had to issue, he did not entirely agree with the construction placed by Ahmed J., on Article 16(1) of the Constitution.
19. Now, the requirement of Article 16 is that in matters relating to employment or appointment to an office under the State, all citizens shall have like opportunity so that every such appointment shall equally be within the grasp of all the citizens of India. The opportunity that is guaranteed by that Article to which every citizen of the country is entitled, is an opportunity, which is subject to the other clauses of that arti-cle, but which is not limited by rank, birth, wealth or any other circumstance.
It should be an opportunity opening the way for each individual, if he is capable and worthy, to aspire for the highest post, however humble he may be, in the public service of the State. That this is so is clearly indicated by the preamble to the Constitution, which states that one of the objects of the Constitution is to secure to all the citizens of the sovereign democratic Republic of India, equality of status and equality of opportunity.
That being so, the requirement of Article 16(1) which, as we have mentioned, guarantees a fundamental right to all the citizens of the Republic of India, is that each citizen shall be eligible for employment or appointment to any office under the State according to his capacity and without any distinction other than what is demanded by his own attainment or talent It is, however, clear that such equality of opportunity does not mean the abolition of qualifications or standards or that the State is not entitled to make an appointment in accordance. with its desire to get the best service that can be obtained or attach importance to the fact that the Government should be well served.
20. But the question is whether such equality of opportunity is guaranteed by the Constitution only at the stage of the initial engagement and whether once such equality has been afforded and the citizen begins to hold an office under the State, it would be possible for him to claim such equality of opportunity at all stages of his career in the service of the State. The question is not free from doubt or difficulty.
21. In Petition No. 126 of 1958: : 2SCR311 , All India Station Masters' and Assistant Station Masters' Association, Delhi v. General Manager Central Railway, their Lordships of the Supreme Court refrained from expressing their view on the question 'Whether matters of promotion are included in the words 'matters relating to employment'.
22. We do not also feel called upon to decide that question in this case, since, in our view, the petitioner cannot reasonably complain that even on the assumption that he was entitled to the equal treatment guaranteed hy the Article at the stage when, according to him, he was entitled to be promoted, there was, in fact, any violation of that guarantee. If, as we understand that Article, the opportunity guaranteed by it is one making it possible for each individual to aspire, whether by appointment or promotion, for the highest position in public service, if he is capable and worthy, and according to his capacity, without any distinction other than what his own attainment or talent demands, it is not easy to understand how the petitioner can in this case, complain that he was not afforded the equal treatment or the opportunity guaranteed hy that Article, unless it can be said that some impediment had been interposed hy the State to his pursuit for promotion or other advancement in service which had not been so interposed in the way of others similarly circumstanced. In other words, it is only if the petitioner can demonstrate that as between himself and respondents 3 and 4, he was subjected to some kind of hostile discrimination, although they were all in the same calling and condition, that he could successfully contend that he had been refused equal treatment.
23. As we have already pointed out, the equality of opportunity guaranteed hy the Constitution does not mean the abolition of qualifications or standards or that the State is not entitled to act in accordance with its desire whether it be at the stage of promotion or whether it be at the stage of appointment, to get the best service that can be obtained or to attach importance to the fact that it should be well-served.
24. The foundation in this case for the petitioner's complaint that he was refused equal treatment is that although he had passed the departmental examination and there was therefore no impediment in the way of his promotion as Excise Inspector, he was superseded, whereas respondents 3 and 4 who did not possess that qualification which was necessary for promotion, had been promoted.
If that was all that could be said about it and we can hold in this case that the seniormost Excise Assistant Inspector who has passed the departmental examinations has an absolute right to a promotion, and that it is not within the power of the State to desist from promoting him, on any ground whatsoever, or, if it is possible for us to reach the conclusion that the Government orders on which the petitioner has relied, absolutely forbid the State from promoting an Excise Assistant Inspector as an Excise Inspector, if he has not passed the prescribed departmental examinations, it might have been possible for us, if matters of promotion can also be regarded as being comprehended in the words 'matters relating to employment' occurring in Article 16(1). to hold that the constitutional equal treatment guaranteed to the petitioner had been refused.
But, if, on the contrary, we take the view, as we do in this case, that success in the departmental examinations, such as those which had to be passed in this case, was not and could not be regarded as either the only or indispensable factor governing the promotion of an employee and that no Government employee could claim promotion from one position to another unless in addition to his possessing those academic qualifications he also conforms to the other standards which, in the view of the Government, are relevant factors, determining the eligibility of an employee for promotion to a higher post, without which the best service cannot be obtained by the State, it would not, in our opinion, be open to an employee who is not in the opinion of the State otherwise worthy of promotion, judged by well known standards applicable to public service, to contend that a promotion for which he could have aspired and which would have been within his reach had he proved himself worthy of it, was withheld by the State by any hostile discrimination such as would amount to an infraction of the equality o[ opportunity guaranteed by the Constitution.
25. Now, in this case, the petitioner cannot reasonably suggest -- nor was any such attempt made on his behalf during the argument -- that while he was in the service of the State, thera was anything done or omitted to be done by the State resulting in the deprivation of any opportunity which any other employee similarly situated was afforded, to earn his promotion as Excise Inspector.
It was, it cannot be disputed, as much open to him, as it was to others like him, to demonstrate by his capacity and worth that he was a person who was, in every way, suitable for promotion. It is not his case that any of the other Excise Assistant Inspectors, including respondents 3 and 4 who were similarly circumstanced, were afforded opportunities in the matter of their promotion, which the petitioner did not himself have and we therefore consider it right to dismiss the complaint of unequal treatment as entirely groundless.
26. When we proceed to consider the claim advanced by the petitioner to the post of an Excise Inspector, it appears to us that that claim does not rest on any proper foundation. The basis of the claim, according to him, is his seniority and the qualification acquired by him by his success in the departmental examinations.
The official interstate seniority list, though provisional, in which his rank is as low as 121, is completely destructive of any claim -- based on seniority, respondents 3, 4 and 5 having been placed in that list very much above him. Although in his affidavit, the petitioner complained that in that list he should have been placed above respondent 5 -- and that was the only criticism made of that list, -- no attempt was made to sustain that contention.
27. It is plain, we think, that the petitioner cannot, as of right, claim any promotion on the ground that the departmental examinations which an Excise Assistant Inspector should pass in accordance with the relevant Government Orders, had been passed by him. Among the well known attributes of public service, the one that is least subject to exception, in our opinion, is that no employee can claim as of right a promotion from one position to another unless he could do so under a statutory provision or an enforceable condition of service.
It is, wo think, clear that a variety of considerations govern the promotion of an employee, none of which alone could render an employee suitable for promotion. Ordinarily, it would be for the State or the promoting authority to determine such suitability after an assessment of all relevant considerations, such as seniority, competence, rectitude, and antecedent official records, none of which is less important than the other, for the preservation of purity and efficiency in public service.
28. When the State claimed in its counter-affidavit the power to make promotions in its departments 'on the basis of seniority, experience, continued good record and other relevant considerations', it did not, in our opinion, claim any special prerogative in the matter of promotion, but was only referring to a basic quality of public service and to what we consider as a well known term of an engagement between the State and its employees.
29. We have been informed on behalf of the State, and that is also what is stated in the counter-affidavit produced on its behalf, that, in the exercise of its administrative discretion, the petitioner was not promoted as Excise Inspector since his record of service was not uniformly good by reason of his increment having been once stopped for dereliction of official duty.
30. It may be, that the petitioner's success in the prescribed departmental examinations had clothed him with the academic qualification which he had to acquire under the Government Orders referred to above. But, if the promoting authority in this case decided, on the basis of the petitioner's rank as settled by the official seniority list which was lower than that of respondents 3, 4 and 5, in conjunction with his unfavourable antecedent official record, that he was not fit to be promoted as Excise Inspector, we would hardly be justified in substituting for the decision of that authority our own view even if we should have found it possible to reach a contrary conclusion.
31. It was, however, suggested on his behalf that the Government Orders which prescribed the passing of the departmental examinations as a qualification for promotion must be construed by us as some kind of statutory provision or condition of service entitling the petitioner to claim promotion on that ground. Sustenance for this argument was also invoked from two Government Orders made on July 3, 1934, and October 31, 1936. An argument was addressed that those two Government Orders have to be regarded by as as transitional provisions applicable to public service of the former State of Mysore, preserved by Article 313 of the Constitution until other provision was made in that regard.
32. But, the thirty-first paragraph of the Government Order dated July 3, 1934, reads:--
'31. Promotion. -- Promotion From one grade to a higher grade shall be for merit, and no member of a service shall be entitled to claim such promotion on the ground of seniority alone-' Likewise, the relevant part of the other Government Order made on October 31, 1936, reads:-- 'According to Rule 30 of the Rules annexed to Government Order No. 106-CRE-1-34-1 dated 3rd July 1934, promotions from one grade to a higher grade shall be for merit and no member of service shall be entitled to claim such promotions on the ground of seniority alone and according to Rules 7 and 9 of the same Rules, no member of the service shall be transferred or promoted to any post higher than he is holding substantively unless he possesses the qualifications prescribed for such posts.'
Those two Government Orders which make it clear that merit and not seniority should form the basis of promotions, far from supporting the petitioner's claim to a promotion as of right on the ground that he possesses the qualification prescribed for the higher post, constitute a complete answer to that contention.
33. We do not also find it possible to accede to the contention that we should treat those two Government Orders as transitional provisions within the meaning of Article 313 of the Constitution. The transitional provisions preserved by that Article are only the laws in force before the commencement of the Constitution, applicable to any public service or any post which continues to exist after the commencement of the Constitution. The Government Orders on which the petitioner depends which were clearly in the nature of administrative instriations issued for the guidance of its departmental officers cannot claim the status of a law such as what is referred to in that arti-cle.
34. The question to be next considered is whether the other three Government Orders of 1951, 1955 and 1957, prescribing the qualification for promotion to the post of an Excise Inspector, can be regarded either as statutory provisions or as enforceable conditions of service, the contravention of which would either render respondents 3 and 4 usurpers in office or justify the issue of a mandamus directing the petitioner's appointment to a higher post.
35. On behalf of the State, it was urged that the question as to whether a Government servant should or should not be promoted to a higher post is one entirely within the administrative discretion of the State and that no Government servant could ever have a right and much less an enforceable right to be promoted to a higher post. Even otherwise, it was argued that the orders of the Government prescribing the departmental tests for promotions had no statutory force and did not constitute an enforceable condition ot service.
36. Respondent 2 who is the, Excuse Commissioner in the State of Mysore is, it is common ground, the authority by whom an Excise Inspector could be appointed, and therefore, the authority who could promote an Excise Assistant Inspector as Excise Inspector. Respondents 3, 4 and 5 were, however, promoted as Excise Inspectors and appointed as such, under orders of the State.
37. The claim made on behalf of the State to uncontrolled and plenary powers in matters of promotion was founded on the provisions of Article 310 of the Constitution which declares that a person holding a civil post under the Union or the State holds it during the pleasure of the president or ths Governor as the case may be. Article 311 forbids the dismissal, removal or reduction of such person except in the manner provided by that Article which requires that such dismissal, removal or reduction should not be made by an authority subordinate to the authority by which he was appointed and without giving him an opportunity to show cause against the action proposed to be taken against him.
38. The argument was that since, as provided by Article 310, the civil post held by the petitioner is held by him only during the pleasure of the Governor, he has no enforceable right to be promoted from the post held by him to any higher post in his service and that such promotion is entirely a matter of the Governor's pleasure-Article 311 has, according to the argument, to be regarded as the only exception to Article 310 and that except in cases where a Government servant was dismissed, removed or reduced in rank contrary to the provisions of Article 311, his remedy is only by way of an appeal of the official kind to the specified officers or the State, as the case may be.
39. Now, under the English Common Law, a servant of the Crown who held office only during the pleasure of the Crown was liable to be dismissed without the assignment of any reason for such dismissal. In respect of such dismissal, no action can be brought against the Crown even if such dismissal contravened the express terms of the contract of employment. The well recognised rule was that the future executive action of the Crown could not be fettered by a contract in matters which concern the welfare of the State. Likewise, the Crown could not be sued by a servant of the Crown even for the arrears of his salary since his claim was entirely dependant on the bounty of the Crown.
40. It was the established notion that the implied condition between the Crown and its servant which was regarded as demanded by public policy was that the servant held his office during the pleasure of the Crown whether or not such condition was the subject-matter of the agreement at the time the engagement had been made.
41. Although the Government of India Act, 1915, (5 and 6 Geo. V. Ch. 61), as originally enacted, contained no provision similar to the doctrine of the English Common Law Section 96-B which was introduced into it by Section 45 of the Government of India Act, 1919 (9 and 10 Geo. V. Ch. 101) incorporated that rule. As provided by Sub-Section (1) of that Section, every person in the civil service of the Crown in India held office during His Majesty's pleasure but could not be dismissed by an authority subordinate to that by which he was appointed, Sub section (2) empowered 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.
42. It will thus be seen that by Section 96-B the common law rule that the servant of the Crown held his office only during its pleasure was given statutory recognition with the important qualification that his dismissal by an authority subordinate to that by which he was appointed was forbidden.
43. Sub-sections (1) and (2) of Section 240 of the Government of India Act, 1935 (26 Geo. V. Ch. II) took the place of Section 96-B(1), But, Sub-Section (3) of Section 240 of the 1935 Act imposed a further qualification on the English common law rule by providing that no person who is a member of the civil service under the Crown in India or holds a civil post under the Crown in India shall 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.
44. It will therefore be seen that the 1935 Act for the first time protected a Government servant against reduction in rank except in the manner provided by Section 240(3). Articles 310 and 311 are contained in Part XIV of the Constitution which deals with services under the Union or the States. Article 310(1) substantially incorporates the provisions of Section 240(1) of the 1935 Act while Article 311(1) and (2) incorporate the provisions contained in sub-Sections (2) and (3) of Section 240 of that Act. Article 313 which provides for the continuance in force of the existing rules reproduces the provisions of Section 276 of the 1935 Act.
45. The resultant position which emerges was summarised by the Supreme Court in Parshotam Lal Dhingra v. Union of India, : (1958)ILLJ544SC , in the following way:--
'(9) To summarise: As under Section 96-B(1.) of the 1915 Act and Section 240(1) of the 1935 Act, the person specified therein held office during the pleasure of the Crown, so under Article 310(1) they hold their office during the pleasure of the President or of the Governor, as the case may be. The opening words of Article 310(1), name ty, 'Except as expressly provided by this Constitution', reproduce the opening words of Section 240(1) of the 1935 Act, substituting the word 'constitution' for the word 'Act'. The exceptions contemplated by the opening words of Article 310(1) quite clearly refer, inter alia, to Articles 124, 148, 218 and 324 which respectively provide expressly that the Supreme Court Judges, the Auditor-General, the High Court Judges and the Chief Election Commissioner shall not he removed from his office except by an order of the President passed alter an address by each House of Parliament. supported by the requisite majority therein specified, has been presented to him in the same session for such removal on the ground of proved Misbehaviour or incapacity. These are clearly exceptions to the rule embodied in Article 310(1) that public servants hold their office during the pleasure of the President or the Governor as the case may be. Subject to these exceptions our Constitution, by Article 310(1), has adopted the English Common Law rule that public servants hold office during the pleasure of the President or Governor as the case may he and has, by Article 311, imposed two qualifications on the exercise of such pleasure. Though the two qualifications are set out in a separate Article, they quite clearly restrict the operation of the rule embodied in Article 310(1). In other words, the provisions of Article 311 operate as a proviso to Article 310(1). All existing laws have been continued by Article 372, some of which, e.g., the Code of Civil Procedure make it possible for a public servant to enforce hig claims against the Slate. It has accordingly been held by this Court in State of Bihar v. Abdul Majid, : (1954)IILLJ678SC that the English Common Law rule regarding the holding of office by public servants only dulling the pleasure of the Crown has not been adopted by us in its entirety and with all its rigorous implications. Passing on to Article 311 we find that it gives a two-fold protection to persons who come within the Article, namely (1) against dismissal or removal by an authority subordinate to that by which they were appointed and (2) against dismissal or removal or reduction in rank without giving them a reasonable opportunity of showing cause against the action proposed to be taken in regard to them. Incidentally it will be noted (hat the word 'removed' has been added after the word 'dismissed' in both Clauses. (1) and (2) of Article 311. Upon Article 311 two questions arise, namely, (a) who are entitled to the protection and (b) what are the ambitl and scope of the protection?'
46. In R. Venkata Rao v. Secy, of State. the question for decision was whether a person who held office in the civil service of the Crown in India could claim damages for wrongful dismissal from Government service in breach of the rules made under Section 96-B of the Government of India Act. 1919. Rule XIV of those rules read:--
'XIV Without prejudice to the provisions of the Public Servants Inquiries Act, 1950, in all oases in which the dismissal, removal or reduction of any officer is ordered, the order shall, except when it is based on facts Or conclusions established at a judicial trial, or when the officer concerned has absconded with the accusation hanging over him, be preceded by a properly recorded departmental enquiry. At such an enquiry a definite charge in writing shall be framed in respect of each offence and explained to the accused, the evidence in support of it, and any evidence which he may adduce in his defence shall be recorded in his presence and hig defence shall be taken down in writing. Each of the charges framed shall be discussed and a finding shall be recorded on each charge-'
Their Lordships of the Privy' Council agreed with the view of the Courts below that the dismissal Of the officer had not been preceded by an enquiry such as the one required by the aforesaid rule. But, they came to the conclusion that the statute gave the officer no enforceable right to hold his office his accordance with the rules. While repelling the contention that the provisions of Section 96-B were subject to the provisions of the Rules made under that Section, this is what their Lordships said:
'The reasons which have led their Lordships to this conclusion may be shortly stated. Section 96-B, in express terms, states that office is held during pleasure. There is, therefore, no need for the implication of this term and no room for its exclusion. The argument for a limited and special kind of employment during pleasure but with an added contractual term that the rules are to. be observed is at once too artificial and too far-reaching to commend itself for acceptance. The rules are manifold in number and most minute in particularity and are all capable of change.
'Counsel for the appellant nevertheless contended with most logical consistency that on the appellant's contention an action would lie for any breach of any of these rules, as for example, of the rules as to leave and pensions and very many other matters. Inconvenience is not a final consideration in a matter of construction but it is at least worthy of consideration and it can hardly be doubted that the suggested procedure of control by the Courts over Government in the most detailed work of managing its services would cause not merely inconvenience but confusion. There is another consideration which seems to their Lordships to be of the utmost weight. Section 96-B and the rules make careful provision for redress of grievances bv administrative process and it is to be observed that Sub-section 8 in conclusion re-affirms the supreme authority of the Secretary of State in Council over the Civil Service. These considerations have irresistibly led their Lordships to the conclusion that no such right of action as is contended for by the appellant exists. It is said that this is to treat the words 'subject to the rules'' appearing in the Section as superfluous and ineffective. Their Lordships cannot accept this view and have already ready referred to in their judgment in Rangachari's case. Rangachari v. Secy. of State . They regard the terms of the Section as containing a statutory and solemn assurance that the tenure of office though at pleasure will not be subject to capricious or arbitrary action but will be regulated by rule. The provisions for appeal in the rules are made pursuant to the principle so laid down.'
47. It should be noticed here that in Section 96-B(1) of the Government of India Act, 1919, the words 'every person in the Civil Service of the Crown in India holds office during His Majesty's pleasure' were preceded by the words 'Subject to the provisions of this Act and the rules made there under.' Their Lordships of the Privy Council were clearly of the opinion that the pleasure of His Majesty was not regulated or fettered by the Rules made under the Act.
48. Now, Article 310(1) reads:
'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 r any civil post under the Union holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.'
The opening words of this Article are 'Except as expressly provided by this Constitution'. The opening words of Section 240(1) of the 1935 Act were 'Except as expressly provided by this Act.'
49. In Dhingra's case, : (1958)ILLJ544SC , their Lordships of the Supreme Court referred with what we regard as approval to the decision in Venkata Rao's case, AIR 1937 PC 31 and observer that the opening words of Section 96-B of the Government of India Act, 1916, 'Subject to the provisions of this Act and the rules made there under' were replaced by the words 'Except as expressly provided by this Act' in Section 240(1) of the 1935 Act, 'as if to reinforce the effect' of the decision in Venkata Rao's case . It was further pointed out that the protection given to a Government servant under the rules framed under Section 96-B of the 1919 Act, requiring a special procedure to be followed before the three major punishments of dismissal, removal or reduction in rank could be Imposed, became converter into a statutory protection only when that provision was incorporated in Section 240(1) of the Government of India Act, and became a constitutional protection when incorporated in Article 311 of the Constitution. In that context, this is what their Lordships observed at page 47 of their decision:
'In other words, the substance of the protection provided by Rule 55 of the 1930 Classification Rules which required a special procedure to be followed before the three major punishments of dismissal, removal or reduction in rank out of the several punishments enumerated in Rule 49 was bodily lifted, as it were, out of the Rules and embodied in the statute itself so as to give a statutory protection to the Government Servants. These statutory protections have now become constitutional protections as a result of the reproduction of the provisions of Section 240 in Articles, 310 and 311 of our Constitution.'
The above discussion may appear to lend sup- port to the contention urged on behalf of the State that the only fetter on the pleasure of the Governor referred to in Article 310 of the Constitution is that contained in Article 311 and that, save in cases where Article 311 is transgressed, the employee cannot claim redress except by such appeal as may be prescribed by competent authority from time to time-
50. This argument may seem to derive support from the opening words of Article 310(1), namely, 'Except as expressly provided by this Constitution' which refer, as pointed out in Dhingra's case, : (1958)ILLJ544SC , to Articles 124, 148, 218 and 324, which respectively provide expressly that the Supreme Court Judges, the Auditor-General, the High Court Judges and the Chief Election Commissioner shall not be removed from their offices except by an order of the President passed after an address by each House of Parliament, supported by the requisite majority therein specified, has been presented to him in the same session for such removal on the ground of proved misbehaviour or incapacity.
51. Reliance in support of this argument was placed on the decisions of the High Court of Madras in N. Devasahayan v. State of Madras, AIR 1958 Mad 53, N. Devasahayam v. State of Madras, : AIR1959Mad1 , and L. Balakrishnan v. Deputy Inspector General of Police, Southern Range, Madurai, : (1959)IILLJ514Mad , and on the decision of the High Court of Kerala in K. J. Antony v. State, AIR 1959 Kerala 59.
52. We do not, however, wish to express in this case any opinion on the correctness or otherwise of this contention. The question whether an employee of the State can seek redress in a Court of law, under the provisions of Article 226 of the Constitution or otherwise, in respect of any infringement of an enforceable condition of service or statutory provision relating to his employment or whether even in respect of such transgression, the only remedy available to him i an appeal to the executive authorities to whom an appeal would be competent, does not appear to us to be entirely free from difficulty-
53. As pointed out by their Lordships of the Privy Council in Venkatarao's case, , there were two decisions of that Board which stated the principles to be applied to such cases. While referring to those cases, this is what their Lordships said:
'The first is Shenton v. Smith, (1895) AC 229 relied upon by the respondent and the other is Gould v. Stuart, (1896) AC 575 relied upon for the appellant. In the first case Dr. Smith held office in the Government Medical service in Western Australia and relied upon certain rules and regulations of the service as an essential part of his contract of service. He was dismissed and brought an action for damage which failed- Upon appeal to Her Majesty in Council, Lord Hobhouse, in giving their Lordships' judg-nent, said:
'It appears to their Lordships that the proper grounds of decision in this case have been expressed by Stone, J., in the Full Court. They consider that, unless in special cases where it is otherwise provided, servants of the Crown hold (heir offices during the pleasure of the Crown; not by virtue of any special prerogative of the Crown, but because such are the terms of their engagement, as is well understood throughout the public service. If any public servant considers that he has been dismissed unjustly, his remedy is not by a law suit, but by an appeal of an official or political kind .......... As for the regulations, their Lordships again agree with Stone, J. that they are merely directions given by the Crown to the Governments of Crown Colonies for general guidance, and that they do not constitute a contract between the Crown and its servants.
A special case such as was contemplated in the above cited passage occurred in Gould's case. (1896) AC 575, where the Board, consisting of three members, two of whom had sat in Shen-ton's case, (1895) AC 229, held that the respondent Stuart held office in New South Wales under certain conditions expressly enacted in the body of the New South Wales Civil Service Act, 1884, and that these express provisions of the statute were 'inconsistent with importing into the contract of service the term that the Crown may put an end to it at its pleasure.'
The question is: Does the present case fall into the general category defined and illustrated by Shenton's case or the more exceptional category defined and illustrated by Gould's case? On the facts it stands somewhere between the two cases inasmuch as here the rules are expressly and closely related to the employment by the Statute itself. In these circumstances difference of judicial view in India has manifested itself.' Although their Lordships of the Privy Council were interpreting the provisions of Section 96-B of the Government of India Act (1919), it appears to us that even after the commencement of the Constitution, it is not inconceivable that a case may well arise falling within the more exceptional category' defined and illustrated by Gould's case, (1896) AC 575, in which event it might be difficult to hold that the provisions of Article 311 constitute the only exception to the provisions of Article 310.
54. But we refrain from expressing any opinion on that question since it appears to us that the case before us is not one falling within any such exceptional category. The proceedings of the Government on which the petitioner relies cannot also, in our opinion, be regarded either as statutory provisions or as enforceable conditions of service. Those proceedings have, in our opinion, no higher status than that of mere administrative instriations issued for the guidance of the officers of the departments of the State and as pointed out by their Lordships of the Privy Council in Venkata Rao's case, AIR 1931 PC 31, they can be 'manifold in number and most minute in particularity and are all capable of change.'
As observed by their Lordships in , they can be of 'infinite variety and can be changed from time to time'. Any error com mitted by a breach of such administrative in striations or decisions cannot, in our opinion, confer on the employee a right enforceable by action. Nor can it properly form the subject of judicial review by this Court. The remedy of an employee in such a case is not by an application to this Court but 'by an appeal of an official or political kind, as described in Shenton's case, (1895) AC 229.
55. The contention of the petitioner, in our opinion, has to fail on another ground. It appears to us on a true construction of the proceedings of the Government on which he depends, that it was open to the Government to promote any Excise Assistant Inspector as Excise Inspector, although the Excise Commissioner himself could not do so unless the Excise Assistant Inspector had passed the required tests.
The power of the State to make such promotion was not, we think, fettered by the restriction which, in our opinion, was only imposed on the' Excise Commissioner, The State was fully competent to exempt any Excise Assistant Inspector from acquiring the qualification necessary for promotion if in its opinion he was otherwise worthy of promotion, and such exemption in the case of respondents 3 and 4 was plainly implicit in their promotion. This, is, therefore, not a case in which the petitioner can ask us for their removal as usurpers.
56. What remains to be considered is the allegation of mala fides. The petitioner has asked us to hold that the promotion of respondent 3 was actuated by mala fides for the reason that respondent 3 although junior to respondent 4 was promoted earlier, for the apparent reason that he was a brother-in-law of the Excise Minister of the State. It is also pointed out that when he was so promoted, he was involved in an enquiry started by the Anti-Corruption Department.
57. The imputation that the promotion of respondent 3 was attributable to the relationship between him and the Excise Minister is refuted by the State and having regard to the belated character of that imputation, we are not disposed to think that there is any substance in the suggestion that that relationship, however close, influenced to any extent, his promotion. It appears that the enquiry commenced by the Anti-Corruption Department against respondent 3 had reference to a renewal by him 'without verification' of a permit for cutting date trees, and that his promotion was made without prejudice to the' result of that enquiry.
Our attention was also drawn to an Official Memorandum issued by the Government on September 18, 1956, directing that save in cases where there were serious charges against an officer, supported by indisputable evidence collected in the course of the preliminary enquiry, promotions of officers involved in such enquiries should not be deferred in cases in which postponement of promotion is not recommended by the Anti-Corruption Department. If is not suggested that the Anti-Corruption Department did anything of that kind in the case of respondent 3.
58. Nor do we consider the circumstance that the promotion of respondent 3 was made earlier than that of respondent 4 as of any particular significance.
59. On the materials before us, it would not, we think, be right for us to hold that the allegation that the promotion of respondent 3 was actuated by collateral considerations has been established.
60. This writ petition fails and is dismissed with costs of respondent I. Advocate's fee Rs.100
61. Petition dismissed.