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Mohamed Hyder Vs. State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 148 of 1957
Judge
Reported inAIR1960AP479
ActsConstitution of India - Articles 309, 310, 311 and 372; Hyderabad Civil Services (Classification, Control and Appeal) Rules - Rule 17(3)
AppellantMohamed Hyder
RespondentState of Andhra Pradesh
Appellant AdvocateM.K. Nambiar, Adv. for ;S. Malakonda Reddy and C. Kulasekhara Reddy, Adv.
Respondent Advocate2nd Govt. Pleader
DispositionPetition dismissed
Excerpt:
constitution - dismissal from service - articles 311, 372 and 310 of constitution of india, 1950 - misconduct committed by petitioner prior to enactment of constitution - petitioner suspended from service by 'rajpramukh' - action taken only in 1956 according to constitution of india - appeal before high court - petitioner wanted treatment according to erstwhile rules and codes - held, action taken post enactment of constitution should be according to constitution and action under article 311 (c) was justified. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take.....narasimham, j.1. the petitioner (mohammed hyder, a former hyderabad civil servant) prays for the issue of a writ of certiorari in relation to an order of the former government of hyderabad dated 13-10-1956 removing him from service with effect from 18-9-1948, the date on which he was placed under suspension, with a view, to get the said order quashed. it is further prayed that a writ of mandamus or any other appropriate writ, order or direction be made by this court to reinstate him into office with effect from 18-9-1948.2. the facts leading to the filing of this petition with the said prayers are briefly these the petitioner was appointed to the former hyderabad civil service in 1937. in january, 1948 he was posted as the talukdar of osmanabad district. while he was serving as talukdar,.....
Judgment:

Narasimham, J.

1. The petitioner (Mohammed Hyder, a former Hyderabad Civil Servant) prays for the issue of a writ of certiorari in relation to an order of the former Government of Hyderabad dated 13-10-1956 removing him from service with effect from 18-9-1948, the date on which he was placed under suspension, with a view, to get the said order quashed. It is further prayed that a writ of mandamus or any other appropriate writ, order or direction be made by this Court to reinstate him into office with effect from 18-9-1948.

2. The facts leading to the filing of this petition with the said prayers are briefly these The petitioner was appointed to the former Hyderabad Civil Service in 1937. In January, 1948 he was posted as the Talukdar of Osmanabad District. While he was serving as Talukdar, Osmanabad, he was placed under suspension on 18-9-1948 as he was accused of various grave offences in the course of his employment as Talukdar, Osmanabad. Prosecutions were launched against him in respect of the grave crimes alleged against him : viz., several murders, looting of property, arson etc. : vide Ex. P. 8, the memorandum of the Chief Secretary dated 10-1-1949, It would suffice in this context to refer to the petitioner's reply to the counter-affidavit filed by the State of Andhra Pra-desh to have an idea of what followed :

'Thus, of the 24 charges, the petitioner was acquitted of 14 charges, i. e., 12 Apsinga dacoity cases and one murder at Apsinga village and of the Upala Murder case by the trial court alone. Of the 10 remaining cases, the petitioner was acquitted of Yeet murder case by the High Court on merits as explained above.

'There remained only 9 cases of loot in Kellari which in fact was a single case pertaining to a particular date and time and which was split up into three groups which were finally dismissed by the Supreme Court.'

It may be stated that prosecutions were launched in the first instance before the Special Tribunal, which was constituted under the Hyderabad Special Tribunals Regulation for the trial of these cases. The petitioner was sentenced to various terms of rigorous imprisonment for his offences. He appealed. The High Court, however, without entering into the merits disposed of the appeals on the technical ground that the constitution of the Special Tribunal was ultra vires the Constitution. The State appealed against the said decision of the High Court.

The Supreme Court held that the constitution of the Special Tribunal for the trial of cases under the Hyderabad Special Tribunals Regulation No 5 of 1358 F. was intra vires the Constitution. The petitioner was interviewed by a Special Committee of the then Cabinet on 12-3-1954 with regard to the cases against him. Even so, the appeals preferred to the Supreme Court by the State were withdrawn, and the Supreme Court dismissed the appeals preferred by the State as withdrawn on 25-6-1954. We are not here called upon to enquire into the propriety or otherwise of the said withdrawals. The reference to tie said withdrawal may be noticed' only as a relevant fact.

3. Subsequently, on 13-10-1956 the former Government of Hyderabad passed an order removing the petitioner with effect from 18-9-1948. the date when he was placed under suspension.

4. In view of the contentions raised before us impugning the said order, we deem it apposite to set it out in extenso :

'Order No. 300/GAD/1 SCR-CSP/56 dated 13-10-1956, of Government of Hyderabad, General Administration Department, Hyderabad Deccan. Sri Mohd. Hyder, a member of Hyderabad Civil Service, who serving as Taluqdar, Osmanabad, was placed under suspension with effect from 18-9-1948, in view of some serious allegations of a criminal nature against him. Sanction to prosecute him in Courts of Law was given, but in view of the general policy of Government in respect of such prosecutions, the cases against him were withdrawn from the Supreme Court.

2. The case against him has been fully examined. The Rajpramukh in exercise of the powers conferred on him by the Proviso (c) to Clause (25 of Article 311 of the Constitution has satisfied himself that in the interests of the security of the State, it is not expedient to give Shri Mohd. Hyder an opportunity as required under Sub-clause (2) of Article 311 of the Constitution.

3. After considering all the facts, the Rajpramukh is pleased to decide that Shri Mohd. Hyder be removed from service with effect from 18-9-1948; and on purely compassionate grounds and as an act of clemency. Sri Mohd. Hyder be paid a compassionate allowance for life equal to 50 per cent of the pension that he would have drawn had he been retired on medical certificate on 18-9-1948. The compassionate allowance will be paid only from the date of this order.

4. For the period from 18-9-1948 to the date of this order, Sri Mohd. Hyder will receive from Government of Hyderabad only the subsistence allowance which he has been in receipt of. With effect from the date of this order, the subsistence allowance will stop and a compassionate allowance, as mentioned in para 3, will be paid.

sd/- P. V. R. Rao,

Chief Secretary to Government.''

It is this order that is called in question now before us.

5. The contentions raised by Sri Nambiar, the learned counsel for the petitioner, are On a two-fold basis :

6. It is his primary contention that inasmuch as the Constitution came into force only on 26-1-1950, pre-constitution misconduct cannot be punished Dy applying the provisions of the Constitution, to wit, Article 311(2), Proviso (c).

7. Para 16 of the Affidavit in support of the petition refers to this contention, which may be usefully set out:

'The removal from Service was with effect from 18-9-1948. The Constitution came into force only on 28-1-1950. Article 311(2) Proviso (c) was not in force on 18-9-1948. On 18-9-1948 the petitioner had a vested right not to be removed or dismissed from service except under and according to the then existing law of Hyderabad which required that the charge should be investigated by a Commission after giving the petitioner an opportunity to defend himself. A true translation of the relevant provisions of Act No. III of 1314 Fasli and the rules framed thereunder is annexed to this affidavit, marked as Exs. P-2 and P-3 respectively and may be read as part of this affidavit. As can be seen from a perusal of those rules there was no provision in the law of Hyderabad similar to that enacted in Article 311(2) proviso (c). The petitioner, therefore, submits that the dismissal as from 18-9-1948 without conforming to the then existing law of Hyderabad, but in conformity with Article 311 of the Constitution which was not in force at that time is void, illegal and without jurisdiction, The Constitution is not retrospective or retroactive in operation.'

Essentially, the argument is that pre-Constitution misconduct alleged against the petitioner, could be punished only with reference to the rules then in force for punishing the misconduct of officers.

8. For this proposition, Sri Nambiar seeks to press into his service Arts. 372 and 313 of the Constitution.

9. Article 372 so far as it is relevant may be set out in this context :

'Article 372(1). Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by it competent Legislature or other competent authority.'

It is abundantly clear from the very terms of the Article that all the law in force in the territory of India immediately before the commencement of the Constitution shall continue in force only subject to the other provisions of the Constitution. In other words, it is made clear that the provisions of the Constitution override any law in force prior to the coming into force of the Constitution.

10. Article 313, which is marginally noted as a transitional provision, is as under:

'Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all India service or as service or post under the Union or a State shall continue in force so far as consistent with the provisions of this Constitution.'

This Article in terms provides for the continuance of provisions consistent with the provisions of the Constitution only.

11. There is ample legal authority for the legal position that the provisions of the Constitution only should govern matters in relation to public service after the coming into force of the Constitution. Vide Suresh Chandra v. Himangshu Kumar Roy, : AIR1953Cal316 . Jagdish Dajiba v. Accountant General of Bombay : (1959)ILLJ117Bom .

12. In the first of the said cases, it was ruled that Rule 15 of the Police Regulations, 1915, must be held to be ultra vires as infringing Article 311(1) of the Constitution and inoperative under Article 313 of the Constitution. The pertinent observations occur in para 30 of the judgment at page 318 of the Report and may be set out appropriately:

'But the petitioner has been dismissed by the order of 6-5-1950 after the Constitution of India came into force. The Petitioner's service is governed by the Constitution and by Article 311 of the Constitution. Rule 15 of of the Police Regulations. 1915, which must now be held to be 'ultra vires' as infringing Article 311(1) cannot stand in the way of the petitioner. The rule must be held, to be inoperative under Article 313 of the Constitution. That the petitioner's service is governed by the present1960 Andh. Pra. D.F./31Constitution of India admits of no doubt. See --North West Frontier Province v. Suraj Narain Anand, 75 Ind App 343: (AIR 1949 PC 112).' In the second case, it was ruled that

'The Civil Services (Classification, Control and Appeal Rules cannot be interpreted so as to permit an encroachment on the powers given to the President under Article 310 of the Constitution.' Meeting the contentions, the learned Judges have reasoned thus in paras 8 and 9 of their judgment ;

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

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

Sri Nambiar strongly relied On Keshavan Madhavan v. State of Bombay, : 1951CriLJ680 but, we are unable to see anything in the case which would lend assistance to the proposition contended for that the defunct rules are perpetuated as against the express provisions of the Constitution.

13. That was a case of a prosecution for an offence punishable under Section 18(1) of the Press (Emergency Powers) Act of 1931. A Division. Bench of the High Court of Bombay held that the proceedings commenced under Section 18(1) of the said Act before the commencement of the Constitution could be proceeded with after the Constitution. With that conclusion, the Supreme Court agreed although for different reasons. The concluding portion of the judgment sets out the rationale for the conclusion arrived at thus :

'If, therefore, an Act was done before the commencement of the Constitution, in contravention of the provisions of any law which, after the Constitution becomes void with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned, for to say that it is, will be to give the law retrospective effect. There is no fundamental right that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force. So far as the past arts are concerned, the law exists notwithstanding that it does not exist with respect to the further exercise of fundamental rights. We, therefore, agree with the conclusion arrived at by the High Court on the second question, although on different grounds.' Sri Nambiar made reference to Section 6(e) of the General Clauses Act as supporting to him in his contention that the old rules should be observed in dealing with the delinquent officer. He also made reference to the Adaptation of Laws Order, 1950, made by the President under Clause (2) of Article 372 of the Constitution of India stating inter alia that 'the General Clauses Act, 1897, applies for the interpretation of the President's Oder as it applies for the interpretation of a Central Act'. Section 6(e) of the General Clauses Act saves inter alia 'any remedy in respect of any such right ..... as if the repealing Act or Regulation had not been passed.'

We have already referred to Article 372 Sub-clause (1) of the Constitution. Sub-clause (2), which is now referred to, states expressly that the President may by order make such adaptations

'for the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution.'

14. Here also, the emphasis is on the express provisions of the Constitution and any adaptation is meant only to be in accord with the provisions of the Constitution. We cannot spell out from these provisions referred to by Sri Nambiar, that the old rules of the Hyderabad Government for punishing the misconduct of its officials were perpetuated notwithstanding the express provisions of the Constitution to the contrary. We have said enough to find against the contentions advanced by Sri Nambiar making out a plea for perpetuating the old defunct rules.

15. Before we formulate our conclusions, we might make reference to an English case, cited by the learned Government Pleader, Re A Solicitor's Clerk (1957) 3 All ER 617. In that case, the appellant, a solicitor's clerk was convicted of larceny in 1953 of the property which belonged to neither his employer nor his client. Such a conviction was not actionable under the Solicitor's Act, 1941; but by an Amending Act of 1956, the larceny of property of anybody irrespective of whether it belonged to the employer or one of his clients, was made actionable pursuant to that action was taken against the appellant under the Amended Act. A contention was raised on behalf of the Solicitor's clerk that the provisions of the Act of 1956 cannot come into operation in respect of a person convicted before that Act came into operation, as that would have the effect of making the Amending Act's operation retrospective, Lord Goddard, C. J., rejected the contention observing that:

'In my opinion, however, this Act is not in truth retrospective. It enables an order to be made disqualifying a person from acting as a solicitor's clerk in the future and what happened in the past is the cause or reason for the making of the order; but the order has no retrospective effect.'

It could be seen from this decision that a person has to be dealt with according to the law in, force at the time he is dealt with and that the delinquent person cannot invoke rules which ceased to have any operation by a change in the duly constituted authority, there is no force in the contention that, by applying the provisions of the Constitution in 1956 when the petitioner was ultimately dealt with, the authority transgressed by giving retrospective effect to the Constitution.

16. It is true that the order of removal was to take effect from 18-9-1948. We are not here called upon to decide whether the removal could have retrospective operation having regard to the statement made by the Government Pleader that it could only have prospective operation. But the learned Government Pleader urges that that would not make any difference for the reasons that the petitioner was under suspension from that date and that ever since he was being paid subsistence allowance which the Government did not seek to recover from him as could be seen from the order in question. We think that the submission is substantial since the petitioner is not required to refund the amount which he had received by way of subsistence allowance. That being the case, he has not suffered any injustice and there will be no ground to interfere with that order.

17. We find, therefore, that we cannot accede to the proposition pressed upon us that pre-Constitution misconduct can he dealt with only with reference to pre-Constitution rules which ceased to have effect after the coming into force of the Constitution.

18. The petitioner was no doubt a member of the former Hyderabad Civil Service. He was put under suspension on 18-9-1948 and continued to be so. Action was ultimately taken against him by an order dated 13-10-1956 by the then Government which was lawfully constituted and functioned within the framework of the Constitution. The rules for punishing the misconduct of Hyderabad officials, which were in force in 1948 ceased to apply at the time when final action was taken against the petitioner. The Government working within the framework of the Constitution have necessarily to deal with the petitioner according to the Constitution under which it derived its power and not apply Act No. III of 1314 Fasli, for enquiring into the corrupt practices of Government officials, which ceased to operate.

18a. We are, therefore, unable to find any substance in this primary argument.

19. Sri Nambiar, the learned counsel for the petitioner, seeks to present the etitioner's case on an alternative footing thus:

20. Assuming that the provisions of the Constitution could be applied in dealing with the petitioner for misconduct in 1948 (pre-Constitution misconduct), he submits that the petitioner had a vested right to continue in service till his services were terminated under the Rules by giving him an opportunity to show cause against his removal, and that denial of an opportunity to him under the proviso (c) to Article 311(2) of the Constitution was mala fide.

21. The learned Government Pleader meets this alternative case by straight answers: that there is no such vested right 'as the petitioner contends he had and the exercise of the power by the Rajpramukh under proviso (c) to Article 311(2) was not mala fide and further justiciable in courts of law:

22. He refers to a Full Bench decision of the Supreme Court in Rajvi Amar Singh v. State of Rajasthan, : [1958]1SCR1015 , wherein the following pertinent observations occur in para 16 of the judgment at p. 230.

'Now it is well established that when one State is absorbed in another, whether by accession, conquest, merger or integration, all contracts of service between the prior Government and its servants automatically terminate and thereafter those who elect to serve in the new State, and are taken on by it, serve on such terms and conditions as the new State may choose to impose. This is nothing more (though on a more exalted scale) than an application of the principle that underlies the law of Master and Servant when there is a change of masters. So far as this Court is concerned, the law is settled by the decision in State of Madras v. K. M. Rajagopalan, : [1955]2SCR541 , which follows the decisions of the Privy Council and the House of Lords in Reilly v. The King, 1934 AC 176 and Nokes v. Doncaster Amalgamated Collieries Ltd., 1940 AC 1014. The distinction between rights to property and contractual rights when there is a change of sovereignty was pointed out in Virendra Singh v. State of Uttar Pradesh, : [1955]1SCR415 .'

23. This authoritative pronouncement obviously negatives the contention pressed in favour of the petitioner that he has a vested right to continue in service.

24. The Constitution provides expressly in regard to the tenure of office of the servants of the Union or a State as the case may be under Article 310. Article 310 Clause 1(1) states thus:

'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, '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 words 'or, as the case may be, the Rajpramukh' occurring after the word 'Governor' wereomitted by the Constitution (Seventh Amendment)Act, 1956. That came into effect from the 1st dayof November, 1956. It may be noticed in passingthat the order of removal now in question hadbeen passed by the Rajpramukh when those wordsoccurred in the Constitution; that is to say, priorto the Seventh Amendment Act. It may as wellbe stated here that the Constitutional theory ofthe tenure of office being during the pleasure ofthe President, Governor or Rajpramukh, as the casemay be, is only a reiteration of corresponding provisions which occurred in the Government of IndiaAct, 1935. The relevant provision of that Act, repealed by the Indian Constitution, was section240 which specified the tenure of office as duringHis Majesty's pleasure.

25. Our view is consistent with what has been adumbrated by the Supreme Court in Parshotam Lal Dhingra v. Union of India, : (1958)ILLJ544SC . After referring to the exceptions occurring in the Constitution, the learned Judges have clarified the position thus in para 9 of the reported Judgment; (relevant portion is extracted).

'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 be 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)....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 that 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 ambit and scope of the protection?'

From the aforesaid observations of the Supreme Court, two points emerge; firstly that the petitioner could have held office only during the pleasure of the Rajpramukh and that there was no such thing as a vested right in him which is inviolable and inherent in him, notwithstanding the Constitution, and secondly that his removal would be governed by Article 311 of the Constitution.

25 a. Sri Nambiar pressed upon us a contention that in any event the Hyderabad Civil Service (Classification, Control and Appeal) Rules made by the Rajpramukh in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India should be complied with in the matter of his removal from service.

26. It is to be noted that these rules areonly subject to the provisions of the Constitutionas expressly enacted under Article 309. Any limitations on the power conferred under Article 310 shouldhe founded on the express provisions of the Constitution and not on the Rules. Moreover, it isto be noted that the Rules in question do not contain any stipulation as to the tenure of service.They only provide for action to be taken againstthe services in disciplinary matters. They cannotbe interpreted so as to permit an encroachment onthe powers conferred on the President, Governoror the Rajpramukh under Article 310 of the Constitution. The view we have taken is consistent withwhat has been expressed in : (1959)ILLJ117Bom .In para 16 of the reported judgment, the followingobservations are completely in accord with theview expressed by us:

'Finally, we have our new Constitution. Article 310(1) reiterates the constitutional theory of the tenure of office being during the pleasure: of the President the Governor or Rajpramukh as the case may be.

It is thus clear that any limitations on this power of the President should be founded on express provisions of the Constitution, if any, and not on the rules or statutes enacted by the Legislatures. Moreover it is to be noted that the Rules in question do not contain any stipulation as to the tenure of services. Among other things they only provide for action to be taken against the services in disciplinary matters. The Rules cannot be interpreted so as to permit an encroachment on the powers given to the President under Article 310 of the Constitution. '

A Division Bench of this High Court also has expressed the view in similar terms in B. Eswaraiah v. State of Andhra, (1958) 1 Andh WR 132 at p. 136 : (AIR 1958 Andh Pra 288 at p. 291). Subbarao C. J., (as he then was) referring to the rules made by the Governor under Article 309 of the Constitution of India, observed thus:

'It is contended by the learned counsel for the petitioner that the statutory rules are as much binding upon the Government as upon a subject, while the Advocate-General contends that a Government servant holds office during the pleasure of the Governor and that so long as the constitutional safeguards provided for him are not infringed, he cannot question the order of the Governor in any Court of Law. The rules were made by the Governor under Article 309 of the Constitution of India and therefore they are statutory rules. But those rules only provide a machinery for working out the constitutional right of a Government servant to give him the reasonable opportunity vouchsafed to him under Article 311(2) of the Constitution of India. When the safeguard Itself is removed by the order of the Governor under Clause (c) of the proviso to Clause (2) the rules which only prescribe the mode of giving that opportunity to a particular class of officers, can no longer govern the rights of the petitioner. The procedure ceases to apply when the substantive right itself no longer exists. We, therefore, hold that the Government was within their rights in dispensing with the services of the petitioner without giving him a reasonable opportunity.'

So, we are reinforced in the view we have taken that the Civil Services (Classification, Control and Appeal) Rules do not override the express provisions of the Constitution and that when action is taken under the express provisions of the Constitution, the non-compliance with the Rules referred to cannot be taken exception to. Even so, we might notice that even the rules relied on provide for not giving an opportunity to show cause against removal from service. Rule 17 (c) (3) of the aforesaid Rules is in these terms:

'Where H. E. H. the Nizam is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.'

This takes us to the next contention strenuously urged by Sri Nambiar that the exercise of the power of the Rajpramukh under the proviso (c) to Article 311(2) was mala fide. We have adverted to the reply of the Government Pleader in this regard that the exercise of the power was neither mala fide nor justifiable in a Court of law.

27. We may now refer to the relevant article and the proviso:

'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:

Provided that this ckuse shall not apply:

(a) x x xxx

(b) x x x xx

(c) Where the President or Governor as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.'

In relation to this proviso, we recall the apposite observations, of the Division Bench in : (1959)ILLJ117Bom of the reported judgment:

'The Constitution in its wisdom has reposed confidence in the invested powers in relation to services on the President who is the highest dignitary of our State and in whom the executive Government vests. The Constitution trusts that the President will always act with full justice to all and in the interest of the State of which he is a caretaker. The integrity and responsibility to carry on the executive Government are the only checks by which the Constitution is satisfied. Moreover, this doctrine of services being at the pleasure of the executive head of the State is not new and is not embodied as a novel theory in our Constitution. This Rule is established in English Common Law and is also recognised in the American Constitution. Shenton v. Smith (1895) AC 229, Myers v. United States, (1920) 272 US 52.'

We are in respectful agreement with the views expressed. We only wish to add that the President or the Governor or the Rajpramukh, as the case may be, as the lawfully constituted authority under the Constitution could satisfy himself in the interest of the security of the State. We cannot subscribe to the theory that the Head of the State acts otherwise than in good faith and satisfies himself in the interests of the security of the State in proper cases.

It has been held by this High Court repeatedly that the satisfaction envisaged in the said provision is 'subjective satisfaction' and cannot be called into question in courts of law. In Mohammed Azam v. State of Hyderabad, 1957-2 Andh WR 464 at p. 467: (AIR 1958 Andh Pra 619 at p. 621) the Division Bench spoke thus:

'Where the action proposed to be taken against a member of the services specified in Clause (1) of Article 311 is under proviso (c) of Clause (2) of Article 311 the satisfaction that it is not expedient in the interests of the security of the State to give that person an opportunity to show cause, is the satisfaction of the Rajpramukh. Is the satisfaction to be subjective or objective? The State of a person's mind cannot be determined by the objective test and as long as the President, Governor or the Rajpramukh acted in good faith, their satisfaction cannot be enquired into in a court of law.'

The said view was emphasised against in 1958-1 Andh WR 132 at p. 136 of the reported judgment: (AIR 1958 Andh Fra 288 at p. 291) -- The pertinent observations are as under;

'Clause (c) of the proviso to Clause (2) of Article 311 in terms confers unrestricted power on the Governor in the interest of the State to deprive a particular officer of the reasonable opportunity provided by Article 311 of the Constitution of India. The said power is not circumscribed by any objective standards and therefore, it cannot be questioned in a court of law.'

Apart from this aspect of the case, we are also satisfied that the Rajpramukh had acted in good faith after examining the whole case of the petitioner. In the resume of the case, we have set out the details of the charges against the petitioner. We referred to Ext. P-8, the memorandum of the Chief Secretary dated 10-1-1949. In the impugned order, it is expressly stated by the Rajpramukh that the case of the petitioner has been fully examined and that the Rajpramukh exercised the power conferred on him by the proviso (c) to Clause (2) of Article 311 of the Constitution. We find ourselves unable to accept the suggestion that the Rajpramukh had not examined the case of the petitioner fully and that he had not acted in good faith. We, therefore, reject the alternative case presented by Sri Nambiar also for the said reasons.

28. In conclusion, we find that the impugned order removing the petitioner from service was made when the petitioner was a member of the service during the pleasure of the Rajpramukh of the State. We hold that the exercise of the power under proviso (c) referred to was proper and that there has been no infringement of the express provisions of the Constitution.

29. We find, therefore, that no case has been made out for interference by way of proceedings in Writ.

30. In the result, the petition is dismissed withcosts; Government Pleader's fee Rs. 250/-.


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