Skip to content


State of Uttar Pradesh and anr. Vs. Dr. Prem Behari Lal Saxena - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 809 of 1964 and Second Appeal No. 912 of 1962
Judge
Reported inAIR1969All449; (1969)ILLJ247All
ActsConstitution of India - Articles 311(2); Constitution of India (15th Amendment) Act, 1963 - Sections 309, 310, 310(2), 311 and 311(1)
AppellantState of Uttar Pradesh and anr.
RespondentDr. Prem Behari Lal Saxena
Appellant AdvocateR.R. Agarwal, Adv.
Respondent AdvocateS.N. Kakkar, ;Sridhar and ;S.P. Srivastava, Advs.
Excerpt:
constitution - protection of services - article 311 (2) of constitution of india - post held by appellant abolished - services of appellant dispensed with without giving show cause notice as required by article 311 (2) - held, provision of article 311 (2) are not applicable when service is terminated as result of abolition of post. - - it was held that he cannot complain that proceedings had not been taken against him as required by section 240 of the government of india, act, 1935. 10. in brainandan prasad v. shukla appearing for the appellants placed strong reliance on the decision of the supreme court in parshottam lal dhingra v. a termination of service brought about by the exercise of a contractual right is not per se dismissal or removal .likewise the termination of service by.....oak, c.j.1. these two appeals raise a common question whether article 311(2) of the constitution of india is applicable where services of a permanent government servant are dispensed with on the abolition of the permanent post held by him.2. in special appeal no. 809 of 1964 the facts are these. dr. prem behari lal saxena was appointed anaesthetist in a government hospital at kanpur. he was appointed to this post by the state government by its order dated 31-3-1951. he was confirmed in this post with effect from 10-9-1955. on 3-11-1961 the state government passed an order that, as the governor has been pleased to order the abolition of the permanent ex-cadre post of the anaesthetist at the government hospital at kanpur, services of dr. p. b. l. saxena, the incumbent of the post, were.....
Judgment:

Oak, C.J.

1. These two appeals raise a common question whether Article 311(2) of the Constitution of India is applicable where services of a permanent Government servant are dispensed with on the abolition of the permanent post held by him.

2. In Special Appeal No. 809 of 1964 the facts are these. Dr. Prem Behari Lal Saxena was appointed Anaesthetist in a Government hospital at Kanpur. He was appointed to this post by the State Government by its order dated 31-3-1951. He was confirmed in this post with effect from 10-9-1955. On 3-11-1961 the State Government passed an order that, as the Governor has been pleased to order the abolition of the permanent ex-cadre post of the Anaesthetist at the Government hospital at Kanpur, services of Dr. P. B. L. Saxena, the incumbent of the post, were being dispensed with. Dr. Prem Behari Lal filed in this Court a writ petition challenging the order of discharge dated 3-11-1961 on various grounds. One of the grounds was that he was removed from service without giving him a show cause notice as required by Article 311(2) of the Constitution. The reply of the opposite parties was that Article 311(2) of the Constitution is not applicable where services of a permanent Government servant are dispensed with on the abolition of the permanent post held by him. On this point, a learned Single Judge of this Court found in favour of the petitioner. He held that termination of services of the petitioner amounted to removal, thatArticle 311(2) was attracted, and the petitioner's discharge from service was unconstitutional. On 2-9-1964 the petition was allowed, and the order of the State Government dated 3-11-1961 was quashed.

3. The State of Uttar Pradesh and the Director of Medical and Health Services, U. P, have filed the special appeal against the order of the learned Single Judge, dated 2-9-1964. When the Special appeal came up for hearing before a Division Bench of this Court, the learned Judges noticed that the question whether Article 311(2) of the Constitution is attracted in such a case or not is of considerable difficulty. They therefore referred the following question of law to a Full Bench,

'Does Article 311(2) of the Constitution apply to a case where the services of a permanent Government servant are dispensed with on the abolition of the permanent post held by him?'

4. Second Appeal No. 912 of 1962 arises out of a suit for declaration and recovery of arrears of salary. Bhagirath Mal plaintiff brought the suit against the Union of India on these allegations. The plaintiff held a permanent civil post of clerk cashier in the Central Remount Depot. On 10-6-1959 he was served with a notice of discharge. He was discharged from service without serving upon him a show cause notice as required by Article 311(2) of the Constitution of India. The plaintiff therefore prayed for a declaration that the order of discharge dated 10-6-1959 was illegal and inoperative, and that the plaintiff was still holding the post of clerk-cashier. The plaintiff also claimed a sum of Rs. 78 on account of arrears of salary from 10-9-1959 to 27-9-1959. The defendant admitted that the plaintiff was holding the post of clerk cashier. The defence was that the post of clerk-cashier was abolished with effect from 15-10-1958. The plaintiff was served with three months' notice under Article 426 of Civil Service Regulations. He was given an option either to accept another post or to retire on compassionate pension. The plaintiff was not entitled to receive a show cause notice under Article 311(2) of the Constitution. The First Additional Munsif, Meerut accepted the defendant's plea, and held that the order of discharge dated 10-6-1959 was valid. The suit was therefore dismissed. An appeal filed by the plaintiff was dismissed by the First Civil Judge, Meerut. Bhagirath Mal plaintiff has therefore come to this Court in second appeal.

5. When the second appeal came up for hearing before a Division Bench of this Court, it was noticed that the present case also raises the question of law which has been referred to a Full Benchin the special appeal It was therefore ordered that the second appeal should also be listed before the Bench dealing with Special Appeal No. 809 of 1964.

6. It may be mentioned at the outset that Article 311 of the Constitution of India was amended by the Constitution (Fifteenth Amendment) Act, 1963, which came into force in October, 1963. The order of discharge to be considered in the special appeal is dated 3-11-1961. The order of discharge to be considered in the second appeal is dated 10-6-1959. It will be noticed that the two orders of discharge were passed before the Constitution (Fifteenth Amendment) Act, 1963 came into force. Consequently in each case we are concerned with Article 311 of the Constitution as it stood before its amendment by the Constitution (Fifteenth Amendment) Act, 1963. At the material time Clause (2) of Article 311 of the Constitution stood thus:--

'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 ...,..,.'.

The term 'lien' has been defined in Clause (13) of Rule 9 of the U. P, Fundamental Rules:--

'Lien means the title of a Government servant to hold substantially, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively.'

Clause (a) of Rule 14-A lays down:--

'A Government servant's lien on a post may in no circumstances be terminated even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post.'

7. In Satish Chandra v. Union of India : [1953]4SCR655 a civil servant had been engaged on the basis of a special contract for a certain term. On the expiry of the term he was re-appointed by a further contract on a temporary basis in accordance with Government rules, which formed part of the contract. He was discharged from service after notice. It was held that Article 311 had no application, because there was neither a dismissal nor a removal from service.

8. In Shyamlal v. State of U. P. : (1954)IILLJ139SC it was held that the terms 'removal' and 'dismissal' imply that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. Action for removal taken against him is founded and justified on some ground personal to the officer. It was pointed out that removal from service and dismissal from service are among the various punishments enumerated under Rule 49 of the Civil Services (Classification, Control and Appeal) Rules.

9. In Gopal Krishna v. Union of India : AIR1954SC632 a railway employee was discharged from service after giving one month's notice according to the terms of his agreement of service. It was held that he cannot complain that proceedings had not been taken against him as required by Section 240 of the Government of India, Act, 1935.

10. In Brainandan Prasad v. State of Bihar : AIR1955Pat353 the petitioners were appointed to temporary posts. Their services were terminated on the abolition of the posts. It was held that the order terminating their services did not amount to removal from service.

11. In Hartwell Prescott Singh v. U. P. Government : [1958]1SCR509 it was held that in the case of a person employed in a temporary capacity on probation (and whose services could, according to the conditions of service) contained in service rules, be terminated by a month's notice, the termination of his services does not amount to dismissal or removal from service within the meaning of Article 311.

12. In Kunjabehari v. State of Orissa : AIR1957Ori27 it was held that in the case of employees appointed substantively to certain posts, Government would be compelled to provide them with alternative employment of an equally remunerative character.

13. In Dalip Singh v. State of Punjab : 1953CriLJ1465 it was held that two tests had to be applied for ascertaining whether termination of service by compulsory retirement amounted to removal or dismissal so as to attract Article 311, The first test is whether the action is by way of punishment, and to find that out, it was necessary that a charge or imputation against the officer is made the condition of the exercise of the power. The second test is whether by compulsory retirement the officer is losing the benefit he has already earned as he does by dismissal or removal.

14. In Abdul Khalik v. State of J. & K. AIR 1965 J. & K. 15 it was held fay a Full Bench of Jammu and Kashmir High Court that when the service of a permanent servant is terminated on the abolition of a post, it is a very serious action taken against the servant. The provisions of section 12G of the State Constitution are clly invoked. The provision of Section 126 of the Constitution of the State of Jammu Sz Kashmir is similar to the provision of Article 311(2) of the Constitution of India.

15. In Jai Shanker v. State of Rajasthan : (1966)IILLJ140SC it was held that removal of a Government servant from service for overstaying his leave is illegal even though it is provided by the service regulation that any individual who absents himself without permission after the end of his leave would be considered to have sacrificed his appointment and may be reinstated only with the sanction of the competent authority.

16. In P. V. Naik v. State of Maharashtra : AIR1967Bom482 it was held that termination of service consequent upon abolition of posts does not involve removal from service within the meaning of Article 311, and does not involve punishment at all.

17. In Balakotaiah v. Union of India : [1958]1SCR1052 it was held that Article 311 has application only when there is an order of dismissal or removal. It is not every termination of the services of an employee that falls within the operation of Article 311. It is only when the order is by way of punishment that it is one of dismissal or removal under that Article.

18. Mr. M. N. Shukla appearing for the appellants placed strong reliance on the decision of the Supreme Court in Parshottam Lal Dhingra v. Union of India : (1958)ILLJ544SC . In that case Das C. J. elaborately discussed the scope of Article 311 of the Constitution. In paragraph 11 of the judgment he observed:--

'The appointment of a Government servant to a permanent post may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a 'lien' on the post.'

In paragraph 12 of the judgment it was observed:--

'In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him ..... Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service.'

In paragraph 28 of the judgment the learned Chief Justice summarised the position thus:--

'Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal ..... Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311(2) .... In either of thetwo abovementioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules ..... .As already stated if theservant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances ...... The realtest for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. ...... The useof the expression 'terminate' or 'discharge' is not conclusive. In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service .... and ifthe requirements of the rules and Article 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.'

19. Mr. K. C. Saxena appearing for the respondent strongly relied upon the decision of the Supreme Court in Moti Ram v. N. E. Frontier Railway : (1964)IILLJ467SC . In that case the Court had to pronounce on the validity of Sub-rule (3) of Rule 148 of the Railway Establishment Code. Sub-rule (3) of Rule 148 ran thus:--

'. . . .the service of other (non-pensionable) railway servants shall be liable to termination on notice on either side for the periods shown below. .....'

Rule 148(3) was struck down as invalid.

20. This is a decision by seven Judges of the Supreme Court. The leading judgment was delivered by Gajendragadkar, J. In paragraph 26 of his judgment he observed:--

'Reverting then to the nature of the right which a permanent servant has under the relevant Railway Rules, what is the true position? A person who substantively holds a permanent post has a right to continue in service, subject, of course, to the rule of superannuation and the rule as to compulsory retirement. If for any other reason that right is invaded and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service and as such, it is in the nature of a penalty and amounts to removal. In other words, termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement, must, per se amount to his removal ......'

The learned Judge observed in paragraph 33 of his judgment:--

'............the impugned Rules authorizethe Railway Administration to terminate the services of all the permanent servants to whom the Rules apply merely on giving notice for the specified period, or on payment of salary in lieu thereof, and that clly amounts to the removal of the servant in question .................. Thetermination of the permanent servants' tenure which is authorized by the said Rules is no more and no less than their removal from service, and so, Article 311(2) must come into play in respect of such cases.'

21. In Moti Ram's case : (1964)IILLJ467SC Subba Rao J. delivered a separate judgment. The learned Judge observed on page 621:--

'The dictionary meaning of the word 'dismiss' is 'to let go; to relieve from duty'. The word 'remove' means 'to discharge, to get rid of, to dismiss'. In their ordinary parlance, therefore, the said words mean nothing more or less than the termination of a person's office. The effect of dismissal or removal of one from his office is to discharge him from that office. In that sense, the said words comprehend every termination of the services of a Government servant ............ ...... Thatapart, a Government servant may be removed or dismissed for many other reasons, such as retrenchment, abolition of post, compulsory retirement and others.'

The judgment of Subba Rao J. in Moti Ram's case fully supports the respondent's contention that discharge of a Government servant upon abolition of the post involves removal from service.

22. Mr. M. N. Shukla contended that abolition of a post is the Governor's privilege; and the respondent can have no say in the matter. It is true that creation and abolition of posts is in the discretionof Government. But a permanent Government servant is vitally interested in a process, which is likely to result in the termination of his services. On the one hand, Article 310 of the Constitution empowers the Governor to abolish posts. On the other hand, a Government servant is entitled to retain a service over which he holds a lien. Aricle 311(2) lays down that no Government servant can be removed from service without having a reasonable opportunity of showing cause. The rights of the parties can be easily reconciled. If it is proposed to abolish a post resulting in termination of services, a show cause notice may be given to the Government servant to enable him to make a representation. Upon a consideration of the representation, it would be open to the Governor to reach a firm decision to abolish the post and discharge the Government servant.

23. It was further suggested for the appellant that in case it is proposed to abolish a post, it is futile to issue a show cause notice to the holder of the post. I do not think so. If the holder of the post receives a show cause notice, the officer may satisfy the authorities that the post ought not to be abolished. In the instant case Dr. Prem Behari Lal Saxena had worked as Anaesthetist in the Government hospital from 1951 to 1961. It was open to him to satisfy the Government that it is difficult to conduct operations successfully without the aid of an Anaesthetist. If the Government were so satisfied, the post would not be abolished. In that case the question of termination of services of the Anaesthetist would not arise.

24. The term 'removal' has been used in two different senses. In : AIR1954SC632 it was pointed out that removal from service is one of the penalties recognized by Rule 49 of the Civil Services (Classification, Control and Appeal) Rules. That is the narrow meaning of the term 'removal'. The term 'removal' has also been used in the sense of termination of service. That is the meaning of the term 'removal' in the broad sense. The question is whether the word 'removed' has been used in Article 311(2) in the narrow sense or in the broad sense.

25. It is true that certain observations in the judgment of the Supreme Court in : (1958)ILLJ544SC support the appellants' contention that when a post is abolished. Article 311(2) is not attracted. But it may be pointed out that in P. L. Dhingra's case : (1958)ILLJ544SC the Court was not dealing with a case of removal or alleged removal from service. Dhingra was reverted from a post in a higher grade to his substantive post in a lower grade. He complained of reduction in rank. It was pointed put in : (1964)IILLJ467SC that there is some inconsistency in the different passages in the judgment in : (1958)ILLJ544SC , There was some conflict among the decisions of the Supreme Court as regards the true scope of Article 311(2). In order to resolve the conflict, a Bench of seven Judges was constituted in Moti Ram's case : (1964)IILLJ467SC . Moti Ram complained of illegal removal from service. His contention was accepted. The Court held that Moti Ram had been illegally removed from service on account of non-compliance with Article 311(2). For all these reasons, the judgment in : (1964)IILLJ467SC should be taken as the authoritative decision of the Supreme Court on the interpretation of the term 'removed' in Article 311(2) of the Constitution of India,

26. According to the decision of the Supreme Court in Moti Ram's case : (1964)IILLJ467SC the term 'removed' in Article 311(2) has to be understood in the broad sense. Even so, certain exceptions have been recognized. There may be a special contract between the parties. Or there may be a service rule providing for termination of services upon the abolition of a post. In the instant case the appellants did not set up any special contract. Nor has my attention been drawn to a specific service rule laying down that a permanent Government servant shall be liable to be discharged from service upon abolition of a post. Mr. M. N. Shukla referred to Article 426 of the Civil Service Regulations. Article 426 states:--

'If an officer is selected for discharge owing to the abolition of his permanent post, he shall, unless he is appointed to another post the conditions of which are deemed to be at least equal to those of his own, have the option -

(a) of taking any compensation pension or gratuity to which he may be entitled for the service he has rendered, or

(b) of accepting another appointment on such pay as may be offered, and continuing to count his previous service for pension.'

27. Article 426 appears under Section II of Chapter XVIII of Civil Service Regulations. The subject matter of Chapter XVIII is conditions of grant of pension. Article 426 provides for compensation to a person, who has been discharged from service owing to the abolition of his permanent post. Article 426 assumes that an officer is being discharged owing to the abolition of his post. Article 426 cannot be treated as a specific service rule providing for termination of services of a permanent Government servant upon abolition of his post.

28. As explained above, the term 'removed' in Article 311(2) of the Constitution of India has to be interpreted in a broad sense. In : (1964)IILLJ467SC there was no charge of misconduct or inefficiency against the Government servant. His services were terminated by giving him notice. It was held that he had been removed from service as contemplated by Article 311(2). If a Government servant discharged upon a simple notice is to be deemed to have been removed from service, I see no difficulty in treating the discharge of a permanent Government servant on abolition of his post, as removal from service. Whenever a Government servant is removed from service, Article 311(2) must be complied with.

29. My answer to the question referred to the Full Bench in Special Appeal No. 809 of 1964 is as follows: In the absence of a special contract or a specific service rule providing for termination of services upon abolition of a post, Article 311(2) of the Constotution does apply to a case where the services of a permanent Government servant are dispensed with on the abolition of the permanent post held by him.

30. I now take up Second Appeal No. 912 of 1962. It is not disputed that the plaintiff held the permanent civil post of a clerk-cashier. His services were terminated upon abolition of the post. So, the principle enunciated above is applicable in the present case also. It was stated in the plaint that the plaintiff did not receive a show cause notice under Article 311(2) of the Constitution. This position was not disputed on behalf of the defendant. The position therefore is that the plaintiff was removed from service without complying with requirements of Article 311(2) of the Constitution. The plaintiff's discharge from service is illegal. He is entitled to a declaration that the order of discharge of plaintiff's service dated 10-6-1959 is illegal and inoperative.

31. It follows that the plaintiff continued in service in September, 1959. He claimed a sum of Rs. 78/- on account of arrears of salary from 10-9-1959 to 27-9-1959. No mistake in the calculation has been pointed out on behalf of the defendant-respondent.

32. In my opinion, second appeal no. 912 of 1962 should be allowed with costs to the plaintiff-appellant in all the three courts. There should be a declaration that the order of discharge of the plaintiff from service dated 10-6-1959 is illegal and inoperative. The plaintiff is also entitled to a decree for Rs. 78/- with pendents lite and future interest at 3% per annum.

Pathak, J.

33. It is my profound regret that I am unable to agree with my Lord the Chief Justice.

34. The facts of the two cases before us have been set out in his judgment and I need not recount them here. I might add that at the outset it has been made clear to us that in each case the Government servant was appointed to a post and not recruited to a service.

35. The question is whether a permanent Government servant is entitled to the benefit of Article 311(2) of the Constitution when his services are terminated on the abolition of the permanent post held by him. Article 311(2), as it stood at the relevant time, provided:

'No such person 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 .....'

The contention of the appellant in each of the two cases is that when a permanent post occupied by a civil servant is abolished and in consequence services of the civil servant are dispensed with, the termination of the services amounts to a removal of the civil servant within the meaning of Article 311(2) and, therefore, the civil servant is entitled to a reasonable opportunity of showing cause before his services are terminated

36. I think it is beyond dispute that the creation of an office must be attributed to the exercise of the sovereign power of the State. And so it has been said that 'every sovereign Government has within its own jurisdiction the right and power to create whatever public offices it may regard as necessary to its proper functioning and its own internal administration and to abolish such offices as it may deem superfluous.' 42 Am Jur 902 Para 31. The power to create an office generally includes the power to modify or abolish it. The two powers have been described as essentially the same. These are principles well settled and are valid whether the question arises in India, the United Kingdom or the United States or indeed wherever organised Government recognising the sovereignty of the State holds sway. The creation of a post and its abolition are essentially matters of administrative policy and expediency related to the needs of Governmental administration. They are matters which properly fall within the exclusive domain of State policy. Public offices are created for the purpose of effecting the end for which Government has been instituted, which is the common good, and not for the profit, honour or private interest of any one man, family or class of men: Ibid 881 Pr. 3. The creation of a post is not to be decided by considerations personal to an individual aspiring to employment as a civil servant. So also, the question of abolishing a post falls to be decided by considerations of Governmental need rather than the private interest of the incumbent in employment.

37. The problem before us refers to a situation which is capable of resolution into two distinct planes. One relates to.the creation of the post and its abolition. The other relates to the manning of that post by the appointment of a civil servant to it, and thereafter upon the abolition of the post to the termination of his services. The two planes involve different spheres of activity. Considerations germane to the first are independent of those governing the second. They are interrelated but only in so far as the second depends upon the first. Unless a post is created there can be no appointment to it. A post must exist before a civil servant cam occupy it. And upon the abolition of the post the appointment must necessarily terminate. The rights of a civil servant to a post envisage of necessity the existence of the post. If the post is abolished the entire envelope of the civil servant's rights is dissolved. It is necessary to bear in mind when considering problem such as the one before us that the creation of a post and its abolition are events distinct from the appointment of an incumbent to the office and the termination of his services.

38. I have already observed that thecreation of a post and its abolition fall within the duration of Governmental policy, and I deem it impossible to accept that a civil servant appointed to a post is entitled to participate in Governmental policy-making on the question whether the post should be continued or abolished. The post may be abolished either by legislative enactment or by executive order. Is it conceivable that before the Legislature enacts a law abolishing the post--and the Bill may be brought by the Government or by a private member -- the civil servant occupying the post should be entitled to be heard in the matter? And if he cannot in the case of abolition by legislative enactment what better title can he assert when an executive order accomplishes the deed? No person can be heard to say that he has a right to prevent a post being abolished so that he might continue in it.

39. The right which a civil servant may assert is a right to continue in the post. But the civil servant enters upon his appointment to the post on the understanding that he is entitled to hold it so long only as the post is not abolished. That is implied in the employment. If the post is abolished, his right to hold it comes to an end. A question on somewhat similar facts arose before the Judicial Committee of the Privy Council in Reilly v. Regem, 1934 AC 176. There, Reilly had been appointed a member of the Federal Appeal Board for a fixed term of years. Before the expiry of the term the office was abolished and his services were terminated. He presented a petition of right contending that there was a contract between him and the Crown and that the contract had been broken. The Supreme Court of Canada held that the relationship between Reilly and the Crown though partly contractual was subject to the necessary term that the Crown could dismiss it at pleasure and, therefore, there was no breach. The Judicial Committee, dissenting from this view, observed:

'If the terms of the appointment definitely prescribe a term and expressly provide for a power to determine 'for cause' it appears necessarily to follow that any implication of a power to dismiss at pleasure is excluded. .... .Thecontrary view to that here expressed would defeat the security given to numerous servants of the Crown in judicial and quasi-judicial and other offices throughout the Empire, where one of the terms of their appointment has been expressed to be dismissal for cause.'

40. The principle expressed here is familiar to us in India.

41. But what is relevant for our purpose is what the Judicial Committee further observes:

'. . . ..the present case appears to theirLordships to be determined by the elementary proposition that if further performance of a contract becomes impossible by legislation having that effect the contract is discharged. In the present case the office held by the appellant was abolished by statute; thenceforward it was illegal for the executive to continue him in that office or pay him any salary; and impossible for him to exercise his office. The jurisdiction of the Federal Appeal Board was gone. The position, therefore, seems to be this. So far as the rights and obligations of the Crown and the holder of the office rested on statute, the office was abolished and there was no statutory provision made for holders of the office so abolished. So far as the rights and obligations rested on contract, further performance of the contract had been made by statute impossible, and the contract was discharged. It is perhaps unnecessary to add that discharged means put an end to and does not mean broken.'

42. Now, Article 311 is not concerned with the question whether a post should be created, or if created whether it should be abolished. It presupposes a post presently existing. It concerns itself solely with the rights of a civil servant occupying such post. That is also clear from the context in which the provision occurs. Articles 309, 310 and 311 define the scope relating to the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State, their tenure of office, and the circumstances and conditions in which they may be dismissed, removed or reduced in rank. The scheme presupposes the present existence of the public services and posts. The power to create those public offices and posts must be found elsewhere. That is part of the sovereign power and is generally exercised through legislation. Viewed from this aspect, it is clear that the rights of a civil servant under Article 311(2) must be read in relation to an existing post and cannot transcend to the more fundamental domain where policy decisions are taken as to the creation of a post and its abolition. Therefore, when a civil servant invokes the rights under Article 311(2) he must limit himself to an assertion of those rights in the recognition that they exist only so long as the post itself is not abolished.

43. Then, I cannot appreciate what purpose it will serve to permit a civil servant to show cause against the termination of his services when the post has been abolished. The Civil servant's severance from the post follows automatically upon the abolition of the post, and the civil servant is presented with a fait accompli. The post has already been abolished. I should have thought that upon the abolition of the post the services of the incumbent cease automatically and indeed when the termination of service is the legal effect of abolishing the office the infinitesimal period of time separating the two is hardly significant. But whatever be the position here, I entertain no doubt that the exercise of a civil servant's rights under Article 311(2) cannot include within it a challenge to the decision to abolish the office. If such a right cannot be read into Article 311(2) and it is conceded that if a post is abolished the civil servant has no right to question that decision, a right of hearing extended to the civil servant under Article 311(2) appears at best a futile gesture.

44. The rights of the civil servant tinder Article 311(2) were considered fully for the first time in : (1958)ILLJ544SC . Although it was a case where the civil servant complained merely of his reversion to a subordinate post, the rival contentions before the Supreme Court ranged over a wide field and the entire content of the expression 'dismissed, removed or reduced in rank' in Article 311(2) was examined. Indeed, Das, C. J. felt obliged to remark:

'We, therefore, consider it right to examine and ascertain for ourselves the scope and effect of the relevant provisions of the Constitution.'

The majority judgment delivered by Das, C. J. summarised the position as follows:

'In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. . .'

Later he observed that the words 'dismissed', 'removed' and 'reduced in rank' signified or denoted the three major punishments which could be inflicted on Government servants and that it was only in those cases where the Government intended to inflict those three forms of punishment that the civil servant was entitled to a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. 'It follows' he observed, 'therefore, that, if the termination of service is sought to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated cannot claim the protection of Article 311(2) . . . . . .' Then he went on to ascertain when an order terminating the service was inflicted as and by way of punishment. He said:

'It has already been said that where a person is appointed substantive-ly 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 misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with Article 311(2).

I do not suppose there would have been much scope for argument after this. But the appellants say that they derive support from the later pronouncement of the Supreme Court in : (1964)IILLJ467SC .

45. Much emphasis has been laid on certain observations of Gajendragadkar, J. who delivered what may be described as the majority judgment in that case. Our attention has been drawn to a passage recording the submission of the Additional Solicitor General that the first part of Rule 148(3) and Rule 149(3) contained in the Indian Railway Establishment Code should be confined to cases where the post held by a permanent servant is abolished or the whole of the cadre to which the post belonged is brought to an end and the railway servant's services are terminated in consequence. It was urged by the Additional Solicitor General that in those cases the termination of services cannot amount to the servant's removal because the termination is not based on any consideration personal to the servant. Gajendragadkar, J. observed:

'In support of this argument, the Additional Solicitor General wants us to test the provision contained in the latter portion of the impugned rules. We are not impressed by this argument'

It is said that the rejection of the argument followed by the striking down of the impugned rules as being inconsistent with Article 311(2) clly establishes that a case where the post was abolished or the cadre to which the post belonged was brought to an end fell within the scope of Article 311(2). After careful consideration, I am unable to accept the interpretation put by the appellants upon this part of the majority judgment It is necessary to be clear as to what was in fact laid down, there. Rule 148(3), which materially corresponds to Rule 149(3) reads:

'(3) Other (non-pensionable) railway, servants:--

The service of other (non-pensionable) railway servants shall be liable to termination on notice of either side for the periods shown below. Such notice is not however required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity.'

The first part of the rule empowers the railway administration to terminate the service of a railway servant by mere notice. The language is so wide as to include all cases of termination of service. There is nothing in it to limit it to cases outside the province of Article 311(2). It is amenable to an interpretation which includes all cases of termination of service including those falling within the protection of Article 311(2). The latter part of the rule merely declares that if the termination is effected after complying with Article 311(2) or by retirement on attaining the age of superannuation or due to mental or physical incapacity no notice need be given. As regards a case of dismissal, removal or reduction in rank, it merely says that the notice required by the first part of the rule need not be given if in such a case Article 311(2) has been complied with. It does not say that such a case is excluded from the embrace of the first part of the rule. It is because of the wide amplitude of the first part of the rule entitling the railway administration to terminate the service by mere notice in all cases, including those properly falling within the province of Article 311(2), that the majority judgment struck down the rule. That this is so is clly demonstrated by the following observations of Gajendragadkar, J.:

'There is one more point .... and that is the point of construction, ..... What the latter portion of the impugned Rules provides is that in case a railway servant is dealt with under that portion, no notice need be served on him. The first part of the Rules can reasonably and legitimately take in all cases and may be used even in respect of cases falling under the latter category, provided, of course, notice for the specified period or salary in lieu of such notice is given to the railway servant There is no doubt that on a fair construction, the impugned Rules authorise the Railway Administration to terminate the services of all the permanent servants to whom the Rules apply merely on giving notice for the specified period, or on payment of salary in lieu thereof, and that clly amounts to the removal of the servant in question, Therefore we are satisfied that the impugned Rules are invalid inasmuch as they are inconsistent with the provisions contained in Article 311(2).'

What would have been the view of the majority on the validity of the rule if the argument had been accepted that the first part of the rule should be confined to cases where the post is abolished or the cadre to which the post belongs is brought to an end is not known. Certainly, the majority did not lay down that if the first part of the rule should be confined to those cases, it would still amount to a removal of the servant within the meaning of Article 311(2). In my opinion. it has not been laid down in Moti Ram : (1964)IILLJ467SC (supra) by the majority judgment that the abolition of a post and the resulting termination of service amounts to the removal of the servant.

46. We were also referred to the passage in the majority judgment in Moti Ram : (1964)IILLJ467SC (supra) where certain observations of Das, C. J. in P. L, Dhingra : (1958)ILLJ544SC (supra) have been considered, and it is said that the remarks of Gajendragadkar, J. in that judgment are critical of the view taken by Das, C. J. that the abolition of a post constituted an exception to Article 311(2). I am unable to read the observations of Gajendragadkar, J. to mean that. Gajendragadkar, J. referred to two observations of Das, C. J. The first observation was:

'The appointment of a Government servant to a permanent post may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a 'lien' on the post.'

And the second observation was:

'.. ... In the absence of any special contract the substantive appointment to a permanent post gives the servant soappointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him.'

Reading these two observations together, Gajendragadkar, J. concluded:

'..... there can be no doubt thatwith the exception of appointments heldunder special contract, the Court took theview that wherever a civil servant wasappointed to a permanent post substantively, he had a right to hold that postuntil he reached the age of superannuation or was compulsorily retired, or thepost was abolished. In all 'other' cases, ifthe services of the said servant wereterminated, they would have to be in conformity with the provisions of Article 311(2),because termination in such casesamounts to removal. The two statementsof the law to which we have just refer-- red do not leave any room for doubt onthis point,'

(Emphasis (here in ' ')mine).

The remarks of Gajendragadkar, J. here indicate his understanding of the view of the Supreme Court deducible from the observations of Das, C. J., as regards which he comments there is no room for doubt. It is said that immediately thereafter Gajendragadkar, J. proceeded to show that the view of the Supreme Court expressed in those observations was incorrect. We were referred to the following passage in the majority judgment;

'Later, during the course of the judgment, the learned C. J. proceeded to examine Rule 49 and the explanations added to it, and then reverting to the question of permanent servants once again, he observed that 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 misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken 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 (pp. 857-58 of SCR): (at pp. 47-48 of AIR). With respect, we ought to point out that though the learned C. J. at this place purports to reproduce what had already been stated in the judgment, he has made two significant additions because in the present statement, he refers to a contract or service rules which may permit the authority to terminate the services of a permanent servant without taking the case under Article 311(2), though such termination may not amount to ordinary or compulsory retirement. The absence of contract, express or implied, or a service rule, which has been introduced in the present statement are not to be found in the earlier statements to which we have already referred, and addition of these two clauses apparently is due to the fact that the learned C. J. considered Rule 49 and the explanations attached thereto and brought them into the discussion of a permanent servant, and that, we venture to think, is not strictly correct.'

Upon a fair reading of these observations of Gajendragadkar, J. it will appear that his criticism was directed only against the two additions, namely, the absence of a contract, express or implied, or a service rule, which constituted, as it were an exception to the rule requiring compliance with Article 311(2), The passage extracted above cannot be read as Implying a criticism of the view that when a post is abolished followed by the termination of service the provisions of Article 311(2) are not attracted.

47. Our attention has also been drawn to the passage in the judgment where Gajendragadkar, J. describes the nature of the right which a permanent servant has under the relevant Railway Rules. He says:

'A person who substantively holds a permanent post has a right to continue in service, subject of course, to the rule of superannuation and the rule as to compulsory retirement. If for any other reason that right is invaded and he is asked to leave his service, the termination of his services must inevitably mean the defeat of his right to continue in service and as such, it is in the nature of a penalty and amounts to removal. In other words, termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement must, per se amount to his removal t is true that the only exceptions envisaged here by the majority judgment to the proposition that a termination of service amounts to the removal of the servant are the rule of superannuation and the rule as to compulsory retirement. But the observations contained in the entire passage must, I think, be read with reference to the position arising out of the relevant Railway Rules. That is apparent from the analysis of the rules made earlier in the judgment which concludes with the observation:

'It is thus clear that as a result of the relevant definitions, a permanent post carries a definite rate of pay without a limit of time, and a servant who substantively holds a permanent post has a title to hold the post to which he is substantively appointed, and that, in terms, means that a permanent servant has a right to hold the post until, of course, he reaches the age of superannuation, or until he is compulsorily retired under the relevant rule.'

And then follow the significant words:

'It is in the light of this position that we must now proceed to examine the question as to whether the termination of the permanent servant's services either under Rule 148(3) or Rule 149(3) amounts to his removal or not.'

Gajendragadkar, J. proceeded to examine the question and then made the observations to which our attention has been drawn. It seems to me that those observations were made in the contemplation of a subsisting post. I am unable to persuade myself that Gajendragadkar, J. had in mind the consequences arising upon the abolition of a post. Our attention has not been drawn to any provision of the relevant Railway Rules, considered by the learned Judges, on the subject of a railway servant's rights to a post on, its being abolished. Had the majority been of opinion that the termination of service upon a post being abolished amounted to the removal of the railway servant there would have been appropriate comment by Gajendragadkar, J. when the two observations of Das, C. J. were examined and it was pointed out that in view of the Court termination of service on the post being abolished was one of the exceptions to the sweep of Article 311(2).

48. Speaking for myself I am clear that the majority judgment does not imply any departure from the view taken by the' Supreme Court in P. L. Dhingra : (1958)ILLJ544SC (supra) that the termination of service following the abolition of a post does not fall within the scope of Article 311(2).

49. Subba Rao, J. has pointed out in Moti Ram : (1964)IILLJ467SC (supra) that a Government servant may be removed or dismissed inter alia on the ground that the post has been abolished. But he came to that conclusion by adopting the wider sense conveyed in the dictionary to the words 'dismissed' and 'removed', and he says that in that sense 'the said words comprehend every termination of the service of a Government servant'. From the tenor of the remaining judgments it does not appear that the remaining six learned Judges who constituted the Bench accepted the wide dictionary meaning of those words and subscribed to the view taken by Subba Rao, J. That Article 311(2) cannot have the wide sweep envisaged by Subba Rao, J. has been brought out in the following observations of Shah, J.:

'Apart from the historical evolution of the guarantee, there is inherent indication in the Constitutional provisions that it was not the intention of the Constitution makers to include in the expression 'dismissed or removed' all terminations of employment. Guarantee of reasonable opportunity of showing cause against the action proposed to be taken in regard to a public servant would be wholly inappropriate in cases of superannuation, expiry of the contractual period of employment, expiry of the period of probation or temporary employment and resignations. It would be futile in such cases to provide for 'showing cause'. The use of the expression 'action proposed to be taken in regard to him' also suggests that termination of employment is of the nature of penal action.'

49-A The appellants rely upon AIR 1965 J & K 15 where the Jammu and Kashmir High Court took the view that excepting for cases of compulsory retirement or of retirement on attaining the age of superannuation all other cases fall within the scope of Article 311(2) and that, therefore, upon the post being abolished the permanent servant holding the post is entitled to the benefit of Article 311(2). On the other side is the decision of the Bombay High Court in : AIR1967Bom482 where a contrary view has been taken. Upon the considerations which have appealed to me, I find myself, with respect, unable to agree with the view taken in Abdul Khaliq, AIR 1965 J & K 15 (supra) and prefer that adopted in P. V. Naik : AIR1967Bom482 (supra).

50. It was urged that termination of service upon the abolition of a post leads to the loss of earned benefits to the civil servant, and we are reminded that the Supreme Court has repeatedly laid down that the loss of earned benefits is an important test for deciding whether a civil servant has been removed within the meaning of Article 311(2). In view of what I have said, there is no question of loss of earned benefits when the post is abolished. There can be a loss of earned benefits where a civil servant expects to earn those benefits when he enters upon his appointment. But where the civil servant enters upon the appointment on the understanding implied in every contractual or statutory employment that the appointment subsists only so long as the post is not abolished it is difficult to see how that question can arise upon the abolition of the post. There may be cases where the contract of employment or rules governing the employment may stipulate as a measure of relief either the payment of compensation or provision for alternative employment. Such a situation is referred to in Article 310(2) of the Constitution and rule 436 of the Civil Service Regulations relating to salary, leave pension and travelling allowances. But in my opinion, it cannot be said that a civil servant suffers a loss of earned benefits attaching to the post when his services are dispensed with upon, the post being abolished.

51. In the result, I would answer the question referred in Special Appeal No, 809 of 1964 as follows:--

'Article 311(2) of the Constitution does not apply to a case where the services of a permanent government servant are dispensed with on the abolition of the permanent post held by him.

52. And Second Appeal No. 912 of 1962 should, in my judgment, be dismissed but without any order as to costs.

Kirty, J.

53. Dr. Prem Behari Lal Saxena, the respondent in this appeal, held the permanent ex-Cadre post of Anaesthetist at the U. H. M. Hospital, Kanpur. By a notice of discharge dated November 3, 1961 his services were dispensed with with immediate effect as the post had been ordered to be abolished by the Governor, and a gratuity equivalent to three months' pay was ordered to be paid to him. in terms of Article 436 of the C.S.R. The validity of this notice was challenged by him by a Writ petition in this Court under Article 226 of the Constitution on the ground that it violated the protective guarantee provided by Article 311(2) thereof. The principal reliefs sought were :---

(a) To quash the order of discharge dated 3rd November, 1961 by a writ of certiorari or otherwise.

(b) To issue a writ of mandamus commanding the 1st respondent not to give effect to the order dated 3rd November, 1961 and to treat the petitioner in service.

54. The writ petition was allowed by a learned Single Judge of this Court who passed an order quashing the order of the State Government abolishing the post and discharging the petitioner from service. Against the judgment of the learned Single Judge, a Special Appeal was preferred by the State of Uttar Pradesh and the Director of Medical and Health Services, U. P. The Division Bench before which the appeal came up for hearing referred the following question to a larger Bench and for considering and answering it the present Full Bench has been constituted by the Hon'ble the Chief Justice:

'Does Article 311(2) of the Constitution apply to a case where the services of a permanent Government servant are dispensed with on the abolition of the post held by him.'

The reference was occasioned by reason of some diverging observations anddicta of the learned Judges of the Supreme Court on the subject contained in the judgments in two cases : (1958)ILLJ544SC and : (1964)IILLJ467SC which the parties pressed into service in support of their respective contentions.

55. In the present case, we are concerned with Article 311(2), as it stood before being amended by the Constitution (Fifteenth Amendment) Act, 1963. On the material date. Article 311(1) and (2) (omitting the proviso which is not relevant in the present case) read as follows:--Article 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, 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.'

56. The question as to whether Article 311(2) would or would not be applicable in cases of termination of service due to abolition of a post did not directly arise in either of the two cases noted above nor, for that matter, in any other case decided by the Supreme Court so far as I know. It would, therefore, be expedient to consider and examine the material constitutional provisions bearing on the question before adverting to the said two cases. It seems unnecessary to refer to or consider the relevant Service Rules as the answer to the question referred to us must, to my mind, turn on the material provisions of the Constitution itself. Besides, the impact of the Service Rules on the constitutional provisions has already been reviewed by the Supreme Court in a number of cases and the emergent position has been enunciated. Apart from Article 311, which has already been quoted above, Article 309 and 310 will need specific consideration and are, therefore, reproduced below:--

Article 309 'Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor .... .of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of serviceof persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any Act'

Article 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 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.

(2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor, of the State, any contract under which a person, not being a member of a defence service or of an All-India or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor .... .as the case may be, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reason not connected with any misconduct on his part, required to vacate the post.'

57. A combined reading of Articles 309, 310 and 311 of the Constitution shows that no guarantee has been provided in respect of the tenure of office of a public servant or in respect of the right to hold a post for any definite or specific period, and that, except as expressly provided by the Constitution itself, every person serving the Union or any State holds the office during the pleasure of the President or the Governor as the case may be. There are three express provisions which control the exercise of the pleasure spoken of in Article 310(1). They are contained in Article 310(2), Article 311(1) and Article 311(2) in Part XIV of the Constitution of India, (There are other provisions such as Articles 124, 148, 218, 324 but they are not relevant in this case). It Is to be noticed that even a person employed under a special contract for a definite period has not been given any right to hold the post for the full period and that the services of even such a person can be dispensed with on the abolition of the post itself or when for any reason not connected with any misconduct he is required to vacate the post. His only right in such event will be to get compensation, if any, as may have been provided for in the agreement If, however, any action is taken for any reason connected with misconduct he will be entitled to the protection under Article 311(2) like any other servant Article 311(2) is not subject to any other provision of the Constitution and within the ambit of its applicability it is absolute. It has, however, to be read in the context provided by Articles 309 and 310, and, so read, it is difficult to hold that it also comprehends termination of service on the abolition of the post held by the servant. Such all-pervading interpretation of Article 311(2) will neither be in conformity with Article 310(1) and (2), nor would these two provisions be reconcilable with each other. Besides, It would also be derogatory to the performance of the executive and administrative functions by the State in matters of policy and expediency in regard to creation and abolition of posts or cadres of service and, possibly, of the legislative function in the matter of enacting laws in that behalf. In the absence of compelling reasons, I am unable to accept such interpretation. Apart from the legal position, settled beyond controversy by a long catena of decided cases including several by the highest Court in the country. Article 310(2) itself, to my mind, clly indicates that 'dismissal' and 'removal' which would attract the provisions of Article 311(2) must relate to termination of service for any reason connected with some misconduct on the part of the servant. The words 'the action proposed to be taken in regard to him' occurring in Article 311(2), in my opinion, also denote that the proposed action is co-related with some culpability attributable to the servant concerned personally for which he is answerable. This is why he is to be given an opportunity of showing cause before any penalty is visited upon him. Article 311(2) embodies the maxim 'Audi alteram partem,' that is, no man shall be condemned unheard.

58. The right to hold a particular post or the lien thereon acquired by the incumbent under the Service Rules attaches to the post in question and cannot exist or survive independently of the post itself. If the post ceases to exist due to its abolition, the right to or lien over the same must, ipso facto, come to an end. The abolition of the post, however, cannot ordinarily entail the termination of the services of the servant who held It unless it was a special post and the Incumbent was appointed only to that particular post as such. If the servant affected by the abolition of the post is a member of a particular cadre, category or class of service, his rights as such member remain unaffected. This, to my mind, follows from the language used in clauses (1) and (2) of Article 311 itself. For these reasons also I am inclined to think that discharge from or termination of service consequential upon the abolition of a post do not attract the provisions of Article 311(2) of the Constitution. The abolition of the post must, of course, be genuine and not a cloak or a mala fide device to get rid of an undesired or undesirable employee, for then the sham abolition will be ignored and the order of discharge from or termination of service of the servant must be struck down as being violative of Article 311(2).

59. The question may now be examined with reference to the dicta contained in the judgments of the Supreme Court in P. L. Dhingra's case : (1958)ILLJ544SC and Moti Ram's case : (1964)IILLJ467SC (supra). If a definite answer is furnished by them, then without anything more, the same can and must be held to be the answer to the question referred to this Bench, If I have ventured to express my own opinion, it is because my opinion is wholly consistent with the dicta of the Supreme Court.

60. In the case of : (1958)ILLJ544SC the majority judgment was pronounced by S. R. Das, C. J. The dissenting judgment was that of Bose, J. By the impugned order dated August 19, 1953 Dhingra, who had by a previous order dated July 2, 1951 been appointed to officiate in Class II service, was reverted to Class III service without complying with Article 311(2) of the Constitution. The petition filed by Dhingra under Article 226 of the Constitution was allowed by Harnam Singh, J. who held that by the impugned order the petitioner had been punished by being reduced in rank and since the provisions of Article 311(2) had not been complied with the order was invalid. On appeal by the Union of India, a Division Bench of the Punjab High Court took the view that Article 311(2) was not applicable to the case and dismissed Dhingra's petition. The decision of the Division Bench of the Punjab High Court was upheld by the Supreme Court and Dhingra's appeal was dismissed. In deciding the appeal, the scope, ambit and effect of Articles 309, 310 and 311 were (sic) propositions were either enunciated or reiterated.

61. After reviewing a large number of cases which were cited, it was observed that those cases also indicate that the preponderance of view is that only a dismissal or removal or reduction in rank by way of penalty attracts the operation of Article 311(2), but that a termination of service brought about otherwise than by way of punishment, e. g. by the exercise of the right under the terms of employment or under the relevant rules regulating the terms of employment does not. It was then laid down that the protection afforded by Article 311 is equally available to persons holding permanent prats and temporary posts.

62. After an exhaustive consideration of relevant Service Rules and the provisions of the Government of India Acts of the years 1915 and 1935, the net result arrived at was expressed as follows:--

'The net result is that it is only in those cases where the Government 'intends to inflict those three forms of punishments that the Government Servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It follows, therefore, that if the termination of service is sought to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated cannot claim the protection of Article 311(2) and the decisions cited before us and referred to above, in so far as they lay down that principle, must be held to be rightly decided'

63. The three forms of punishment referred to in the above quotation were dismissal, removal and reduction in rank.

64. It was then observed that the foregoing conclusion, however, does not solve the entire problem, for it has yet to be ascertained as to when an order for the termination of service is inflicted as and by way of punishment and when it is not. It is important to note here that before proceeding to consider how this question is to be judged the overriding principle was reiterated in the following words:--

'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 misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the Service Rules read with Article 311(2).'

The purpose of this reiteration (similar view was enforced earlier in paragraph 12) clearly was to emphasise that termination of service of a servant on his attaining the age of superannuation or due to compulsory retirement or on the abolition of the post itself, per se, results in cessation of the servant's right to hold the post and that the provisions of Article 311(2) are not attracted to such cases. The reasons for doing so, in the context, could only be to remind by way of abundant caution that the tests and criteria which were being enunciated in the judgment for ascertaining when an order for termination of service is inflicted as and by way of punishment so as to attract Article 311(2), would not be applicable at all to such special category of cases as they stand apart and outside the ambit of that Article. If this be the correct reading of the majority judgment of the Supreme Court in P. L. Dhingra's case : (1958)ILLJ544SC (supra) and, in my humble opinion, it is -- the answer to the question referred to this Bench must obviously be in the negative. But then it has been argued that the Supreme Court itself subsequently modified its own views in : (1964)IILLJ467SC and that termination of service even when the post itself is abolished will attract the operation of Article 311(2). Before proceeding to consider Moti Ram's case : (1964)IILLJ467SC (supra), it seems pertinent and necessary to note that the majority judgment delivered by S. R. Das C. J. in P. L. Dhingra's case : (1958)ILLJ544SC (supra) was unanimously given by all the learned Judges except Bose, J. who delivered a separate dissenting judgment ot his own and that even in the dissenting judgment there is no dictum that even when termination of service is occasioned by the abolition of the post itself the provisions of Article 311(2) will be applicable.

65. I now propose to examine Moti Ram's case : (1964)IILLJ467SC (Supra), particularly with a view to determine whether, and, if so, to what extent the pronouncements therein modify, supersede or whittle down the previous view of the Supreme Court expressed in P. L. Dhingra's case : (1958)ILLJ544SC that termination of service on the abolition of the post will not come under Article 311(2). It may be noted that in Moti Ram's case : (1964)IILLJ467SC out of the seven learned Judges who constituted the Bench, the main judgment was delivered by Gajendragadkar, J. speaking for himself and also on behalf of Wanchoo, Hidayatullah and Ayyangar, JJ. and it was held that Rules 148(3) and 149(3) contained in the Railway Establishment Code, Vol. I were invalid as they contravened the provisions of Article 311(2) and also Article 14 of the Constitution.

Mr. Justice Subba Rao, in his separate but concurring judgment, agreed that the said two Rules were invalid. On Article 14, the learned Judge had nothing further to say but on the impact of the impugned rules on Article 311 of the Constitution, he gave his own reasons and in doing so certain observations were made by him which have been very strongly relied upon by the respondent in the instant case. Das Gupta, J. also gave his own reasons for holding the rules in question to be invalid on the ground that they impugned Article 311(2) and Article 14 both. Shah, J. in a separate judgment recorded his own opinion that the rules neither infringed Article 311(2), nor Article 14 and were not, therefore, invalid. It is not necessary to consider the views expressed in Moti Rain's case : (1964)IILLJ467SC (supra) with reference to Article 14 but the views on Article 311(2), in so far as they bear on the question to be decided by this Bench, are of prime importance and have to be ascertained for the purpose of judging their impact on the exposition of the scope and ambit of the applicability of Article 311(2) in P. L. Dhingra's case : (1958)ILLJ544SC . A mention may also be made in this connection that the Bench of seven Judges was not constituted in Moti Ram's case : (1964)IILLJ467SC to reconsider the views expressed in Dhingra's case : (1958)ILLJ544SC , nor because any doubt had arisen about them. This will be clear from paragraph 5 of the judgment of Gajendragadkar, J. The essential background and the context in which certain observations were made and some views were expressed must not be lost sight of, otherwise the same might be misconstrued or misunderstood.

66. In the judgment delivered by Gajendragadkar, J. some basic premises were first formulated or reiterated as a matter of general rule and then the questions directly involved in the cases before the Court were considered and judged in the light of those premises. The first premise is that Article 309 has to be read subject to Article 310 and 311 and Article 310 has to be read subject to Article 311. It was then observed that the provisions contained in Article 311 are not subject to any other provision of the Constitution and that within the field covered by them, they are absolute and paramount. In considering the effect of the provisions contained in Article 311(2) it was then stated at the outset that the protection afforded by Article 311(2) is limited to the imposition of three major penalties contemplated by the Service Rules, viz., dismissal, removal or reduction in rank and that, in the context, dismissal, removal and reduction in rank specified in Article 311(2) represent action taken by way of penalty. After reiterating the settled legal position in regard to the applicability of Article 311(2) in cases of termination of the service or reduction in rank of a temporary servant or a servant on probation, the learned Judge observed:

'In regard to servants holding substantively a permanent post who may conveniently be described hereafter as permanent servants, it is similarly well settled that if they are compulsorily retired under the relevant service rules, such compulsory retirement does not amount to removal under Article 311(2). Similarly, there can be no doubt that the retirement of a permanent servant on his attaining the age of superannuation does not amount to his removal within the meaning of Article 311(2). The question which arises for our decision in the present appeals is: If the service of a permanent civil servant is terminated otherwise than by operation of the rule of superannuation, or the rule of compulsory retirement does such termination amount to removal under Article 311(2) or not? It is on this aspect of the question that the controversy between the parties arises before us.'

The omission to mention abolition of post in the above-quoted passage was sought to be made capital of by the learned counsel for the respondent in the instant case. It was submitted that in the statement of law 'termination' of service on abolition of the post itself was advisedly and purposely excluded so as to confine the limits of the enclaves in the otherwise all-pervading field of operation of Article 311(2) to termination of service on attainment of the age of superannuation or by compulsory retirement under relevant service rules only. Read in isolation and divorced from the context and the background, the observations might be construed in the manner urged by the learned counsel, but, in reality, that would be misconstruing them.

The controversy in Moti Ram's case : (1964)IILLJ467SC , as already noted, was as regards the validity of Rules 148(3) and 149(3) of the Railway Establishment Code, Volume I and, therefore, before considering the merits of the arguments advanced by the parties, the learned Judges appear to have laid down the premises and objective tests emanating from the service rules on the basis of which the controversial issue before them required to be decided. No significance or importance can, to my mind, be at all attached to the bare omission of termination of service on abolition of post, either in the passage quoted above or in any other part of the judgment. It may be mentioned here that the extreme contention raised on behalf of the Railway servants that the word 'removal' should receive a much wider connotation than had been accepted by the Supreme Court in its earlier decisions and that all terminations of services in respect of all categories of public servants should be held to constitute removal within Article 311(2) was rejected. It was held that the field that is covered by Article 311, on a fair and reasonable construction of the relevant words used in that Article, would be excluded from the operation of the pleasure exercisable under Article 310(1). It has nowhere been said or observed in the majority judgment that such field would cover termination of service on the abolition of the post itself.

67. Far from expressing any opinion or view which may be considered as derogating from or whittling down the clear observations made in Dhingra's case : (1958)ILLJ544SC the majority judgment in Moti Ram's case : (1964)IILLJ467SC in reality affirmed them. This will be clear from paragraph 40 of that judgment which reads as follows:--

'In regard to permanent servants, the learned Chief Justice has made some observations which it is now necessary to consider very carefully. 'The appointment of a Government servant to a permanent post,' observed the learned Chief Justice 'may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a lien on the post.' (p. 841 of SCR): (at p. 42 of AIR). On the same subject, the learned C. J. has later added that 'in the absence of any special contract, the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service, or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him.' (p. 843 of SCR): (p. 42 of AIR). Reading these two observations together, there can be no doubt that with the exception of appointments held under special contract, the Court took the view that wherever a civil servant was appointed to a permanent post substantively, he had a right to hold that post until he reached the age of superannuation or was compulsorily retired, or the post was abolished. In all other cases, if the services of the said servant were terminated, they would have to be in conformity with the provisions of Article 311(2) because termination in such cases amounts to removal. The two statements of the law to which we have just referred do not leave any room for doubt on this point.'

68. The contention that in Moti Ram's case, the Supreme Court modified its earlier view in Dhingra's case : (1958)ILLJ544SC in regard to the applicability of Article 311(2) to termination of service on abolition of post is not well founded and must, therefore, be rejected. The dictum of Subba Rao, J. contained in para 65 of the judgment in Moti Ram's case : (1964)IILLJ467SC on which reliance is placed so strongly and on account of which the matter has been referred to this Bench cannot have the effect of overriding the majority judgment in Moti Ram's case : (1964)IILLJ467SC . The view expressed by Mr. Justice Subba Rao is his individual view and, in face of the clear observations made in para 40 of the majority judgment, cannot be accepted as the view of the Supreme Court itself. This will be clear from the following passage from the judgment of Subba Rao, J. himself;

'This Bench of seven Judges has been constituted to steer clear of conflicting observations, if any, found in the judgments of this Court and to arrive at a conclusion of its own unhampered by such observations. I would, therefore, proceed to consider the relevant provisions in accordance with the natural tenor of the expression used therein and then to scrutinise whether any of my conclusions would be in conflict with any of the decisions of this Court.'

69. Upon a close reading of the judgments in Dhingra's case : (1958)ILLJ544SC and Moti Ram's case : (1964)IILLJ467SC I have arrived at the definite conclusion that the view taken by the Supreme Court, vide majority judgments in both the cases, is that Article 311(2) would not be applicable to termination of service on the abolition of the post itself. The learned counsel for the respondent relied on the decision of a Full Bench of the Jammu and Kashmir High Court in AIR 1965 J. & K. 15, in which it wag held that the view of the Supreme Court itself (as inferred) by the learned Judges of the High Court upon a reading of the judgment in Dhingra's case : (1958)ILLJ544SC and Moti Ram's case : (1964)IILLJ467SC is that Article 311(2) of the Constitution will be applicable to termination of service even when the post is abolished. With great respect, I am unable to agree with the learned Judges of the Jammu and Kashmir High Court in the aforesaid case. I prefer the decision of the Bombay High Court in : AIR1967Bom482 , in which after considering Dhingra's case : (1958)ILLJ544SC and Moti Ram's case : (1964)IILLJ467SC , it was held that in case of termination of service consequent upon abolition of posts the provisions of Article 311(2) are not applicable.

70. My answer to the question referred to this Bench is in the negative.

71. BY THE COURT: In accordancewith the opinion of the majority, weanswer the question referred to the FullBench in the negative. Let papers bereturned to the Division Bench with thisanswer.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //