Krishna Rao, J.
1. The substantial question which arises for decision in this second appeal is whether the order, Ex. A. 1 dated 10 October 1957, made by the Works Manager of the Central Railway at Secunderabad dispensing with the appellant's services is Justiciable.
The order reads as follows:
Sri Xavier Pascal is attaining the age of superannuation 65 years, on 11 October 1957. He should, therefore, be put off duty from 11 October 1947 until the question of his nationality is finally decided by the General Manager.
It is Been from the order that the appellant's services were dispensed with on the ground that he had attained the age of superannuation, viz., 55 years. Admittedly the poet of maistry in the Works Manager's office which was held by the appellant, comes within the expression 'civil post under the Union' in Article 310 of the Constitution. He therefore holds office during the pleasure of the Precedent, 'except as expressly provided by the Constitution.' The order is not one of dismissal, or removal, or reduction in his rank, which would attract Section 311. It purports to dispense with the services of the appellant only because he has reached the age of superannuation under the service rules applicable to him. The appellant's contention is that be had not reached the age of superannuation for an Indian Christian, which is 60 years, and that he had been erroneously treated as an Anglo-Indian, for which category of employees the age of superannuation is 55 years. But this is not a ground on which Ex. A. 1 can be interfered with and the appellant reinstated in Bervice. The lower appellate Court is therefore right in holding that the order complained of in the salt is not justiciable. Although the plaintiff has preliminarily asked for a declaration that he belongs to the Indian Christian community, the real and substantial relief sought by him is the setting aside of the impugned order and his reinstatement in the service of the railway. As the Court had no jurisdiction to grant these substantial reliefs the lower appellate Court was right in ordering the dismissal of the suit. This second appeal is accordingly dismissed.
2. On the question of costs, the lower Court based its judgment of dismissal on two other grounds which, it appears to me, are not equally sustainable. No issue as to the justiciablity of the impugned order had been taken in the trial Court. In these circumstances, the parties will bear their own costs. No leave.
3. This second appeal having been set down this day for being mentioned in pursuance of tine letter of the appellant's advocate dated 2 July 1962, upon perusing the said letter, and Upon hearing the arguments of Mr. K. Venkata Ramayya, advocate for the appellant, and of Mr. R. Raghavan, advocate for the respondents, the Court made the following
4. The learned Counsel for the appellant now contends that by dispensing with or terminating the services of the appellant on the erroneous ground that he is an Anglo-Indian, the respondents inflicted a punishment upon him which attracts Article 311 of the Constitution. He relies on Purshotham Lal Dhingra v. Union of India 1958 I L.L.J. 644 where S.R. Das., C.J., observed at pp. 559-560:.it has yet to be ascertained as to when an order for the termination of service is inflicted as by way of punishment and when it is not. It has already been said that where a person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until under the rules he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of a misconduct, negligence, inefficiency or other disqualifica-and appropriate proceedings are taken tions under the service rules read with Article 311(2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant's rights and brings about a premature end of his employment.
5. This is new ground of attack against Ex. A. 1, because no question or issue was raised at the trial as to whether Article 311 was infringed.
6. I may observe that it is not as if the appellant was first treated as an Anglo-Indian at or about the time of the impugned order, Ex. A. 1. In the service card, Ex. A. 2, which was prepared as long ago as in 1923, shortly after he joined service in 1921, he was shown as an Anglo-Indian. The relevant entry is in column 3, and reads 'Race: Anglo-Indian.' The learned Counsel emphasizes that the letters 'Chr.' are found scored out. Bat this to my mind only shows that after considering whether he was a Christian or an Anglo-Indian, the entry deliberately made was that he was an Anglo-Indian. It is in D.W. 1's evidence that.
Service cards are filled in by a clerk, checked by another clerk, read out to the employee and thumb-impression taken.
7. The criticism on behalf of the appellant that this procedure is not recorded or declared in Ex. A. 2, has no significance because there are no grounds whatever to suspect D.W. 1's veracity. Thus it appears that the appellant represented himself to be an Anglo-Indian as distinguished from an Indian Christian soon after he entered the service. D.W. 1's evidence also shows that Ango-Indians at that period were given preferential treatment as compared with Indian Christians, and that the appellant enjoyed those privileges. While the ordinary starting pay for the post held by the appellant was O.S. Rs. 15-2-3 the appellant was started on a pay of O.S. Rs. 18-6-8. In 1943, he also superseded two of his seniors of non-Anglo-Indian origin named Aganna and Mallayya. No doubt almost immediately after D.W. 1 stated in his cross-examination 'Pascal (appellant) was treated as an Anglo-Indian since his declaration,' it was elicited:
I cannot say whether Pascal was promoted out of seniority or efficiency or just because he was an Anglo-Indian.
This inability on the part of D.W. 1, the assistant personnel officer, was natural, because, it appears that he was aged only 26 years in 1960 and so he could have no personal knowledge of what did not appear on the record long before he entered service himself. His positive evidence is aided by the presumption as to the regularity of official Act. The learned Counsel strongly relies on the trial Court's finding on issue 3 which reads:
Is the plaintiff estopped from contending that his being classified as Anglo-Indian is a mistake arising out of misdescription?
The trial Court placed the onus as to this issue on the respondent-defendants and found that the onus has not been discharged by them. But the question now arising for consideration is whether the appellant was discharged in accordance with the conditions subject to which he was employed and the rules of his service. There is sufficient prima fade evidence that be declared himself to be an Anglo-Indian and enjoyed the benefit of the privileges accorded to Anglo-Indians. The appellant has not shown that these were not privileges awarded to him on account of his being an Anglo-Indian, but were in recognition of his special efficiency as now pressed by his learned counsel. The respondent 3 (Chief Mechanical Engineer of the railway) also took the view that the appellant originally declared himself as an Anglo-Indian based on certain expected advantages as appears from the Exs. A. 14 to A. 16. It follows that the conditions of the appellant's service throughout, until the impugned order was made, proceeded on the basis that he was an Anglo-Indian. In these circumstances, it cannot be said that he had acquired a right to hold the post until the age of 60 years and that the termination of his service amounted to a punishment. On the other hand, he was seeking to acquire a new right by attempting to establish that he was really not an Anglo-Indian but an Indian Christian.
8. Hence there are no grounds to review the judgment already delivered on 27 June 1962.