K.S. Asthana, J.
1. There eight writ petitions under Article 226 of the Constitution are being disposed of by a common judgment as they involve similar questions of fact and law. The eight individual petitioners, with effect from different dates between the year 1959 and 1960, were employed by the administration of the Northern Railway as class IV employees for serving as loco cleaners. According to the petitioners, they got their appointments as loco cleaners and were posted at various stations after they had undergone all the formalities of selection and after having passed the medical test. The petitioners no doubt served the railway administration in the capacity of loco cleaners. In respect of each of them proper service records were maintained by the railway administration and their salary were fixed in accordance with the prevailing scales of pay. In the third year of their appointment each one of them underwent, what is described as periodical medical re-examination, and according to the standard prescribed, each one of them was declared fit. It is then alleged by the petitioners that they were, however, asked to undergo a medical examination again though the next three years had not expired, Willy-nilly the petitioners as directed appeared before the Divisional Medical Officer at Allahabad who during their medical examinations applied the tests as prescribed for medical examination on initial entry into service and declared each one of them as unfit. Thereupon, each of the petitioners was served with a notice in the following words:
[Notice, dated-12-1964/2 January 1964 issued from the office of the Divisional Superintendent, Nothern Railway, Allahabad].
The Divisional Medical Officer, Northern Railway, Allahabad, had declared you medically unfit, you cannot therefore be permitted to perform duty as cleaner. It is proposed to grant you leave due as notice below, subject to DAO/ALD's verification and on its expiry, you will be discharged from service with effect from....
You should hand over charges of all the railway property which is in your possession to loco foreman. For at once and vacate the railway quarters if any in your possession immediately failing which action will be taken to evict you under the Public Premises (Eviction of Unauthorized Occupation) Act, 1968, and rent under the extant rules will be recovered from you.
You are hereby given seven days' time from the date of receipt hereof to show cause as to why the action proposed should not be taken. Any representation that you will make in this connexion will be taken into consideration before passing final order.
2. Different dates were mentioned in the notices sent with effect from which the service of the respective petitioners was to stand discharged. Nothing material turns on these dates.
3. The case of the petitioners is that they having been duly appointed after having been declared medically fit initially and they further having passed the periodical medical re-examination as required by the rules, the authorities soled illegally and arbitrarily in asking them to undergo a fresh medical examination and then discharging them from service on their alleged failure in that examination by applying standards which, under the rules, could not be applied to them. It has been contended by them in their petition that having been discharged from service on charge of inefficiency due to physical unfitness the railway authorities have actually punished them and the provisions of Article 311(2) of the Constitution have been violated, no reasonable opportunity to show cause at any stage having been afforded to the petitioners.
4. In the counters-affidavit sworn by a head clerk of the office of the Divisional Superintendent, Northern Railway, Allahabad, it has been alleged that the petitioners obtained their initial appointment by deceitful means and is conspiracy with the certain members of the railway staff, though in fact they were never selected by the selection committee and they were never offered letters of appointments. It is further alleged that the petitioners somehow or other obtained offers for appointment and memorandum for medical examination. It is also alleged that the petitioners actually failed in the medical examination but got false entries made in their records and by deceiving the Personnel Officer procured false letters of appointment from his office. Suggestions have been made in the counter-affidavit even to the extent that the letters of appointment and the various other documents found on their file bear forged initials of the then Personnel Officer. On these allegations the argument on behalf of the opposite parties is that the initial appointment of the petitioners being invalid having been vitiated by fraud, they are not entitled to the protection of Article 311(2) of the Constitution. It is also contended that discharge from service on ground of medical unfitness not being a penalty, the provisions of Article 311(2) of the Constitution are not attracted was precisely on the ground that the representation of each of the petitioners was rejected by the Divisional Personnel Officer.
5. It would be seen that the orders which have been impugned by each of the petitioners are that of discharge from service on the ground that the petitioners have not been found to come up to the requisite standards of physical health. The petitioners have not been discharged on any ground relating to their conduct in securing the employment ; the impugned orders at least ex facie of not show it. At the (sic) the learned Counsel appearing for the railway administration stated that the only physical defect found with the petitioners as a result of the medical examination was that their eyesight was weak. I am not concerned in this petition with the question whether the weakness of eyes disqualifies a person from getting an employment or for continuing in employment as loco cleaner in the railway administration. The fact remains that the railway administration thought it fit to discharge the petitioners from service on that score. The question that falls for determination in these petitions is whether in so discharging the petitioners from service any of their rights conferred by Article 311 of the Constitution have been infringed.
6. In the counter-affidavit reference has been made to a rule in the Railway Administration Code which is to the effect that the discharge of a person for inefficiency due to failure to conform to the requisite standards of physical fitness does not amount to penalty under the Disciplinary and Appeal Rules for Railway Servants. Sri .N. Khare, learned Counsel appearing for the petitioners, submitted that despite any such rule in the Railway Establishment Code or in the terms of contract of service, the provisions of Article 311 of the Constitution would be attracted as the discharge of the petitioners on an alleged physical disqualification amounted to removal from service as a measure of punishment and no opportunity having been afforded to the petitioners by holding a proper enquiry as required by Article 311(2) of the Constitution, the order of discharge was vitiated. Learned Counsel in this connexion relied upon the decision of this Court in the case of R.P. Nigam v. Kanpur Electricity Supply Administration. A report of this decision was placed before me in 1962-II L.L.J. 712. In this case R.P. Nigam was discharged from service of the kanpur Electric Supply Administration as in the opinion of the Chairman, who was the appointing authority, he had become physically incapacitated and unfit to work. The action was taken by the Chairman in accordance with the terms of contract of employment. Yet this Court held that the order of discharge was made in violation of the provisions of Article 311 of the Constitution. I am informed that the decision of Oak, J., was affirmed by a Division Bench in special appeal and I am further told that special leave for appeal to the Supreme Court was finally refused by the Supreme Court itself. Thus the decision of Oak, J., in the abovementioned case is good law so far as this Court is concerned. No decision to the contrary has been cited before me by the learned Counsel for the opposite parties. It follows, therefore, that so far as the discharge from service of each of the petitioners is concerned on the ground that he was physically unfit without holding an enquiry and affording him an opportunity to show cause, the railway administration has violated the provisions of Article 311(2) of the Constitution. However, this does not conclude the case in favour of the petitioners as I have yet to examine the argument raised on behalf of the opposite parties to the effect that the petitioners' appointment itself being invalid ab initio they would not be entitled to the protection of Article 311(2) of the Constitution.
7. Sri V. Swarup, who argued the case on behalf of the railway administration with great circumspection and with some amount of ability, in the forefront of his submissions drew my attention to the various paragraphs of the counter-affidavit sworn by Sri N.B. Mathur, the head clerk of the office of the Divisional Superintendent, Northern Railway, Allahabad, and tried to urge that it was proved beyond any doubt that the petitioners secured their appointments initially as loco cleaners by decoit and by practising fraud on the railway administration. Learned Counsel emphasized that in the panel which was prepared at the relevant time the name of none of the petitioners appeared. He also emphasized the fact that in 1962 when doubt arose as to the genuiness of the service records of the petitioners an enquiry was held which resulted in grave disclosures of fraud and decoit rampant in the matter of employment of class IV servants in the office of the Divisional Superintendent at Allahabad which led to the dismissal of two clerks attached to the Personnel Officer. The submission was that when the appointment of the petitioners was obtained by fraudulent means and in the eye of law in fact there was no appointment at al, they, having no right to hold the post, were not entitled to any protection under Article 311 of the Constitution. Reliance was placed in this connection on the case of Vishweshwar Bijayapuri Bhagre v. Chairman, State Transport Authority, Madhya Pradesh A.I.R. 1955 Nag. 163 and State of Punjab v. Jagdip Singh 1966-I L.L.J. 749.
8. Sri V.N. Khare for the petitioners, on the other hand, strenuously contended that taking the allegations in the counter-affidavit at their face value they, at best, gave rise to a suspicion and the facts and circumstances disclosed therein fell far short of any proof of fraud or deceit on the part of the petitioners in securing employment with the railway administration. The learned Counsel submitted that the straightforward statement on oath made by each of the petitioners based on personal knowledge ought to be preferred as against the vague allegations in the counter-affidavit which were not sworn to on personal knowledge or even on any specific record. Sri V.N. Khare drew my attention to Para. 66 at p. 51 of an official publication entitled 'Indian Railway establishment Manual' dealing with the procedure of recruitment of class IV railway servants and showed that what the petitioners have in their respective affidavit and the rejoinder-affidavit stated conformed to that procedure.
9. Much argument was made at the bar whether there is any panel at all made and preserved of class IV employees as a result of the selection by the selection committee. I find from Para 66, referred to above, that what is enjoined is the hanging of a list of selected candidates on the notice-board. In the counter-affidavit in Para. 3 certain procedure is mentioned which is required to be followed. It talks of a panel being prepared. I do not think if there is any material difference between preparing a list or a panel of selected candidates; both practically mean the same thing. The question that is material is whether a list is to be hung on the notice board for the purpose of information or it is to be preserved in the shape of panel for reference in future. I do not find anything in the counter-affidavit which would go to show that the procedure mentioned in Para. 3 of it is statutory in the sense that it has been made by the President under his rule-making power or by the Railway Board, for the matter of that, under its rule-making power. The procedure mentioned in Para. 66 referred to above, is not so elaborate as compared to that mentioned in Para. 3 of the counter-affidavit. May be, what is mentioned in Para. 3 of the counter-affidavit is an amplification of the procedure which is already prescribed in Para. 66; all the same it remains merely a rule for departmental guidance. I think this propositions cannot be seriously disputed. Whether one takes the procedure prescribed in Para. 66 of the Indian Railway Establishment Manual or takes the procedure mentioned in Para. 3 of the counter-affidavit into consideration, nothing therein relates to the power of appointment. The rules prescribed therein concern only the manner of appointment. The question then is reduced to this that in case there is breach of some rule of procedure as prescribed by Para. 66 or as mentioned in Para. 3 of the counter-affidavit, whether the appointment so made is rendered invalid though it has been made by the properly empowered appointing authority. It is not disputed here that the Personnel Officer is the appointing authority for class Iv servants in each division. The petitioners do assert that they were appointed by the Personnel Officer. Their service records which have been placed before me show that there exist letters of appointment bearing the initials of the Personnel Officer.
10. Sri V. Swarup, however, as instructed by his clients, urged that the initials of the Personnel Officer on each of the appointment letters were forged but there is no material before me on the basis of which I could hold that the assertion so made has credibility. No affidavit sworn by any high official of the railway administration is on record before me. Sri N.B. Mathur, the head clerk, has only thrown a hint or suggestion to that effect. He does not even assert it as a certainty. At a late stage of the arguments Sri V. Swarup presented an a application before me praying for time to produce certain other relevant papers but I do not think I would be justified in granting such a prayer as, to my mind, there is nothing in this application to indicate that any high officer of the railway administration is prepared to take the responsibility of filing an affidavit before this Court that the alleged initials on the appointment letters are not actually those of the then Personnel Officer but are forged. Even if other papers had come before me, the position would have remained the same and I would have been persuaded by Sri V. Swarup to draw an inference in favour of his clients from those papers. Since I did not think that any useful purposes would be served, I rejected that prayer and I decline to accept the assertion made on behalf of the opposite parties that actually no valid letters of appointment were ever issued to the petitioners and what is kept on their service records is a forged document.
11. The above discussion then leads to this result. The petitioners got letters of appointment bearing the signatures of appropriate authority who was competent to appoint them. Armed with their letters of appointment each of the petitioners was posted on duty in the loco sheds at various stations. Their service books were duly opened ; their salaries were duly fixed ; they earned the increments due and were regularly paid their wages including all the allowances by the railway administration. At the expiry of three years each of them was asked to undergo a medical re-examination required by the rules and every one of them passed. It was suddenly after a time that it dawned upon the railway administration that there has been some mischief on the part of the petitioners in securing appointments in conspiracy with the clerks who were attached to the Personnel Officer then and therefore, they ought to be got rid of. To carry out that design the petitioners were asked again to undergo a medical test on the standards applicable for initial appointment. Each of them unfortunately failed to pass that test and the only fault which was discovered in these unfortunate men was that their eyesight was defective. There is nothing to show that any one of them is blind or cannot see. Of course, as already observed above, it is not for this Court to comment upon the physical standards of eyesight laid down for initial recruitment in class IV service of the railway, but I am emphasizing these circumstances to demonstrate the miserable state to which the petitioners are being reduced in these hard times as a result of suspicion against them. This aspect brings into bold relief one more fact, I cannot help inferring that the real reason for removal of the petitioners from service is not so much their physical unfitness regarding their eyesight as the suspicion against them for having secured initial appointment in the railway administration by the alleged deceitful means. If that is the real reason behind the action, then all the more the impugned order is defective inasmuch as the petitioners are being removed from service for a misconduct attributed to them without holding an enquiry and affording them an opportunity to show cause.
12. Reverting back to the main point, namely, whether, in the circumstances disclosed above, the initial appointment of the petitioners is invalid, I have no hesitation in holding that their appointment is not invalid as there was no lack of power in the appointing authority to give them the appointment. The case relied upon by the learned Counsel for the opposite parties cited above, one decided by the High Court of Nagpur and the other decided by the Supreme Court in India, do not help him. Firstly, in both the said cases the very action based on the alleged defect in the manner of appointment was in question. In the present case the learned Counsel for the opposite parties is making a collateral attack on the validity of the initial appointment of defending an action which is not based on that defect or infirmity. Before the defence could succeed, this Court has to determine those facts and record finding. Secondly, in both the cases cited it would be seen that the invalidity of the appointment was attributable to the lack of power of appointment and not to any procedural defect or irregularity in the manner of making the appointment. N my judgment, therefore, the ratio of the decision of the cases relied upon by learned Counsel for the opposite parties is not applicable to the facts and circumstances of the instant case.
13. On the other hand, I agree with Sri V.N. Khare, learned Counsel for the petitioners, that merely because the petitioners might have not succeeded in the initial medical examination, though they asserted that they did pass the medical examination before the appointment was given to them, or that their names were not included in the panel, so long as the letter of appointment was signed by the appropriate authority the appointment by itself would not invalidate because of the aforesaid procedural irregularity. The case of Ganga Singh v. State of Uttar Pradesh 1961-I L.L.J. 668 decided by a Divisional Bench of this Court, has been cited as an instance in support of the said proposition. I have already observed above that Para. 66 of the Indian Railway Establishment Manual and the rules mentioned in Para. 3 of the counter-affidavit are at best rules for departmental guidance and they do not pertain to the power of the appointing authority to make the appointment. That power of appointment is conferred on that authority from another source and it is not the creature of Para. 66 of the Indian Railway Establishment Manual or what is mentioned in Para. 3 of the counter-affidavit. I think failure on the part of the appointing authority to strictly comply with any of the provisions just mentioned will merely be an irregularity and will not amount to an invalidity so as to render the appointment made by him void. I, therefore, do not find any substance in the submission of Sri V. Swarup, learned Counsel for the opposite parties, that the appointment of the petitioners being invalid the provisions of Article 311(2) would not be attracted.
14. Even assuming for a moment that initial appointments of the petitioners suffer from any infirmity so as to render it invalid, I think the railway administration yet will have to frame suitable charges and hold an enquiry for affording an opportunity to the petitioners to meet the case made out against them based on fraudulent practice or deceitful means adopted by them to secure employment. By its conduct the railway administration accepted the petitioners as its employees. It posted them for performing the duties of loco cleaners and brought them on its establishment as regular employees. Even in serving the impugned notices it recognized their status as railway servants and purported to discharge them from its service ; in these circumstances, I do not think the railway administration case now be allowed to take a somerault and say that the petitioners were never in its service. For the purpose of discharging them from service the petitioners have been rightly treated as servants of the Indian Union holding civil posts and if the reason for removing them is their physical unfitness and/or the fraud and deceit practiced by them to secure employment, suitable charges will have to be framed against them, enquiry made, reasonable opportunity afforded to them before final action could be taken. Considered from this view-point also the action of the opposite parties in discharging the petitioners in the manner in which they have done is illegal.
15. For the reasons given above all these petitions succeed. They are allowed the notices and orders contained in annexures A, C and D in each of the petitions are quashed. The petitioner in each of the writ petitions would be entitled to his costs.