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inder SaIn Bakshi S/O Bakshi Anant Ram Vs. Union of India, Through Secy. Ministry of Defense Govt. of India, New Delhi - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 53-D of 1959
Judge
Reported inAIR1969Delhi220
ActsConstitution of India - Articles 197, 309, 310, 310(1), 311, 311(2), 372(1) and 447; Code of Civil Procedure (CPC), 1908 - Sections 9; The Civilians in defense Services (Classification, Control and Appeal) Rules, 1952 - Rules 1, 3, 4, 8, 9, 24, 25, 26 and 31; Government of India Act, 1935 - Sections 240, 240(3) and 241; Civil Services (Classification, Control and Appeal) Rules - Rules 49 and 55; Railway Establishment Code, 1959 - Rules 148(3) and 149(3); Indian Navy (Discipline) Act, 1934; Army Act, 1950; Indian Air Force Act, 1950; Civil Service Regulations - Regulation 197-A - Schedule - Articles 442 and 443; Motor Vehicles Act - Sections 43-A
Appellantinder SaIn Bakshi S/O Bakshi Anant Ram
RespondentUnion of India, Through Secy. Ministry of Defense Govt. of India, New Delhi
Appellant Advocate Gyan Singh Vohra, Adv
Respondent Advocate Central Govt. Adv., ; Prakash Narain and ; A.B. Saharya
Cases ReferredMoti Ram Deka v. N. E. Frontier Railway
Excerpt:
a) the present case involved the appellant, a civilian employee of defense department, whose appeal against the order of the down-grading was dismissed - it was observed that there was no pending appeal of the appellant, as contemplated by rule 31 of the civilian in defense services (c.c.a.) rules, 1952, though the memorial against the order in appeal was pending - it was ruled that memorial cannto constitute an appeal within the meaning of rule 31 of the civilians in defense services (c.c.a) rules, 1952 - it was ruled that the case cannto be disposed of under the rulesb) the case involved the appellant, terminated from the service as a civilian in defense services upon whom article 311 was nto applicable -it was found that the termination based on the ground of physical unfitness.....1. this second appeal arises out of a suit for declaration filed by the appellant against the union of india.2. the appellant's case was that he was a civilian employee of the defense department of the government of india, having been appointed in 1924 in the military farms department, subsequently called the remount veterinary and farms corps of the defense services. he was a permanent hand in the said service and was promoted to the rank of temporary manager in the year 1944, which post he held until 1951 when he was down-graded. in june 1950, the deputy assistant director of remount veterinary farms, army headquarters, paid a surprise check-up visit to the appellant's farm at mhow where the appellant was the manager and inspected the stores. on the basis of the check-up results the.....
Judgment:

1. This second appeal arises out of a suit for declaration filed by the appellant against the Union of India.

2. The appellant's case was that he was a Civilian employee of the defense Department of the Government of India, having been appointed in 1924 in the Military Farms Department, subsequently called the Remount Veterinary and Farms Corps of the defense Services. He was a permanent hand in the said Service and was promoted to the rank of temporary Manager in the year 1944, which post he held until 1951 when he was down-graded. In June 1950, the Deputy Assistant Director of Remount Veterinary Farms, Army Headquarters, paid a surprise check-up visit to the appellant's farm at Mhow where the appellant was the Manager and inspected the stores. On the basis of the check-up results the appellant was suspended on 26-6-1950 and was simultaneously transferred to Namkum in Bihar, At Namkum, a charge-sheet dated 14-7-1950 was served on the appellant on 20-7-1950 and he was directed to submit his Explanationn by 24-7-1950. An inquiry was conducted into the charges and finally on 2-4-1951, the appellant was down-graded. On 14-5-1951, the appellant filed an appeal against his down-grading to the defense Minister, Government of India, and the same was dismissed on 20-12-1951, The appellant was nto given a reasonable opportunity to defend himself and the order of down-grading passed against him was unconstitutional, illegal and unwarranted and was contrary to principles of natural justice and offended against Article 311(2) of the Constitution of India.

3. The appellant's further case was that by an order received by him on 14-12-1951 from the Assistant Director, Remount Veterinary & Farms Headquarters, Western Command, he was asked to report to the Officer Commanding, Military Hospital, since he was to be placed before a Medical Board for examination. The appellant was examined by a Medical Board on 24-12-1951 at Dehra Dun. The Civil Surgeon, Dehra Dun, wrote to the Assistant Director, Remount Veterinary and Farms, on 7-1-1952 certifying that the appellant was suffering from influenza, bronchIT is and fever and recommended extension of leave by one month. To this, no reply was received. On 4-2-1952, the Civil Surgeon again wrote a similar letter recommending one month further extension of leave. Thereafter, the appellant received a letter dated 9/11-2-1952 from the Assistant Director, Remount Veterinary Farms to the effect that the appellant had already been invalided by the Medical Board held at Dehra Dun on 24-12-1951, and thereforee, the question of grant of further leave did nto arise and it was then for the first time, the appellant learnt that his services had been terminated.

According to the appellant, with all his attempts to get a copy of the report of the Medical Board as to the ailment from which he was said to be suffering, it was nto supplied to him and he was told that the proceedings of the Medical Board were confidential as per paragraph 399 of the Regulations for the Medical Services of the Army in India. The case of the appellant was that at that time, he had an accumulated furlough leave of about three years to his credit and he was within his rights to avail of the same on any ground and the failure to give him a copy of the opinion of the Medical Board prevented him from preferring an appeal against the opinion of the Medical Board and canvassing its correctness. The contention of the appellant was that there was no occasion for him to be placed before a Medical Board and when he questioned the competency of the authorities to place him before the Medical Board, he was informed that since he repeatedly asked for medical leave, arrangements were made to place him before a Medical Board with reference to Regulation 197-C, Note 1 of Civil Service Regulations.

The representations made by the appellant against his termination of services based upon the said report of the Medical Board proved of no avail to him. The case of the appellant was that the termination of his services was illegal, contrary to law and principles of natural justice and also against Article 311 of the Constitution of India, With these averments and allegations, the appellant filed a suit (No. 516 of 1954) on the file of a Sub-Judge, I Class, Delhi, praying for a declaration that the appellant's services were wrongfully terminated and he was wrongfully down-graded and that he had always continued in his service as temporary Manager of Military Farms (Remount Veterinary and Farm, Corps) and was entitled to all rights, emoluments, privileges, benefits and concessions in respect of his cadre, appointment, promotions etc.

4. The Union of India which was the defendant in the suit filed a written statement, wherein it was contended that as far as the down-grading was concerned, the action against the appellant was taken by way of disciplinary action and the, procedure laid down in Army Instructions No. 212 of 1949 was followed in dealing with the case of the appellant and no irregularities were committed in the said procedure. With regard to the termination of the appellant's services, it was contended that the authorities were within their rights in so terminating the services and they were also within their rights in nto giving the appellant a copy of the proceedings of the Medical Board since they were confidential according to paragraph 399 of the Regulations for the Medical Services of the Army in India. It was further contended that the disciplinary case of the appellant as well as his subsequent appeals were dealt with in accordance with the procedure laid down in Army Instructions No. 212 of 1949 and the Ministry of defense Gazette Notification No. 95 of 1952 and a proper show-cause notice was issued before the final order of his down-grading and as such, the provisions of Article 311 of the Constitution were nto contravened.

There was one further contention. In the written statement, viz., that in matters at defense personnel the jurisdiction of the Civil Courts is impliedly barred under Section 9, Civil Procedure Code. (This appears to have been raised by way of amendment to the written statement applied for and allowed by the Court.) With reference to this written statement, one thing may be noticed. It was nto the case of the defendant in the written statement that since the appellant belonged to defense department. Article 311 was nto applicable to him.

5. On the basis of these pleadings of the parties, a learned Sub-Judge, I Class, Delhi, framed the following 13 issues:

1. Was the convention of the Medical Board on 24-12-1951 beyond the ambit of the Rule 197, note 1 C. S. B. If not, was it in bad faith or unnecessary

2. Is Article 311, Constitution of India, applicable to a case of invalidment on medical grounds

3. Was the plaintiff invalidated by a competent authority and when was that order first communicated to the plaintiff?

4. Was any show-cause notice necessary to be issued to the plaintiff before his invalidment?

5. Is the plaintiff entitled to the declaration that his down-gradiation vide letter dated 2-4-51 was wrongful?

6. Has the court no jurisdiction to try the suit?

7. Can jurisdiction on this court be conferred on ground of violation of the principles of natural justice, equity and good conscience, if the court's jurisdiction is barred otherwise?

8. Was the plaintiff given a reasonable opportunity to show-cause against his invalidment?

9. Was the plaintiff's invalidment conceived in bad faith or for a collateral purpose? If so, with what effect?

10. Was the Ministry of defense nto competent to deal with the memorial of the plaintiff?

11. Was the procedure adopted In regard to the plaintiff's invalidment contrary to the principles of natural justice, equity and good conscience?

12. Was the plaintiff's down-grading wrongful?

13. Relief.

The learned Sub-Judge decided issue No. 1 in favor of the appellant by holding: that the authorities had no power in the circumstances to convene a Medical Board for the examination of the appellant, and in view of this conclusion, he held that the second part of the issue did nto arise. With regard to issue No. 2, he held that the invalidment of the appellant amounted to his removal from service, and consequently, before his discharge he was entitled to a notice and a hearing. With reference to issue No. 3, he held that the competent authority to discharge the appellant was only the Quarter Master General in view of the Gazette Notification No. 95 of 1952 and since the appellant was discharged from service nto by the Quarter Master General, he was nto removed from service by a competent authority. He also gave a finding that the date of communication of the order of termination of service of the appellant was 9/11-2-1952 as evidenced by Ex. P. 42. Following the finding on issue No. 2, with reference to issue No. 4, he held that a show cause notice was necessary to be issued to the appellant before his invalidment.

With regard to issue No. 5, he took the view that since the appellant was down-graded from the post of temporary Manager to that of his permanent post of Assistant Supervisor, Article 311 was nto attracted and he was apparently of the view that the provisions of Article 311 were applicable to permanent appointments only and nto to temporary appointments. Regarding issue No. 6, he came to the conclusion that it was nto established on record that the appellant was a servant connected with defense, and thereforee, the jurisdiction of the Civil Court was nto barred. In view of his finding on issue No. 6 he came to the conclusion that issue No. 7 did nto arise for decision. In relation to issue No. 8, the learned Sub-Judge recorded the finding that it was conceded on the defendant's side by the defense's counsel at the Bar, and hence, decided the issue in favor of the appellant. With reference to issue No. 9, he came to the conclusion that even if any officer of the department was unsympathetically disposed to the appellant still the administration had the right to place its employee at any stage of the service before a Medical Board during his service to see whether the employee was or was nto physically fit to perform his duties or for a like purpose, and thereforee, decided the issue against the appellant

With regard to issue No. 11, the learned Sub-Judge took the view that it was nto the duty of the Medical Board to Inform the appellant about their opinion and offer him any opportunity to produce any evidence like certificates to the contrary from other competent doctors; but it was the duty of the department in whose employ the appellant was, to duly inform the appellant of the medical opinion, and thereforee, the issue was held nto proved and was decided against the appellant. In view of his finding on issue No. 5, he held that Article 311(2) was nto attracted to the appellant's down-grading, and consequently, decided the issue against the appellant. In the end, the learned Sub-Judge by a judgment and decree dated 28-5-1957 decreed the appellant's suit with costs and grant- ed him declaration that the termination of his services was wrongful and that he was deemed to continue as Assistant Supervisor. Thus, it will be seen that the appellant succeeded in part and failed in part.

6. To the extent to which the trial Court granted the decree in favor of the appellant regarding his invalidment on medical grounds, the Union of India, filed an appeal. In that appeal, the appellant filed cross-objection in so far as his suit for declaration that his downgrading was wrongful was nto decreed. The appeal as well as the cross-objection were disposed of by the First Additional District Judge, Delhi, by a judgment and decree dated 20-1-1959. The learned First Additional District Judge pointed out in Ma judgment that the learned counsel for the defendant-appellant during the course of his arguments solely laid stress on two points viz., that Article 311 of the Constitution of India was nto applicable to the facts of this case since the appellant herein at the time of his invalidment from service was holding a post connected with defense, and further that the appellant was neither dismissed nor removed from the service but was compulsorily retired on account of physical disability.

On the first point, the learned First Additional District Judge came to the conclusion that Article 311, Constitution of India, did nto apply to the appellant since he was holding a post connected with defense. On the second point, the learned First Additional District Judge came to the conclusion that the appellant was really removed from service and was nto compulsorily retired, and thereforee, but for his finding that Article 311 did nto apply to the appellant's case, the appellant would be entitled to the relief he prayed for. In this view, he allowed the appeal of the Union of India and dismissed the cross-objection of the appellant. With regard to demotion of the appellant, the learned Judge recorded as follows:

The learned counsel for the defendant-appellants conceded, and rightly too, that the department did nto furnish the plaintiff-appellant with copies of the report and proceedings of the Enquiry Officer while serving him with a notice to show cause as to why he should nto be demoted. In the absence of this step, the plaintiff-respondent cannto be said to have been afforded a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

7. The present second appeal has been preferred against this judgment and decree of the learned Additional District-Judge, Shri Vohra, the learned counsel for the appellant, contended that both with regard to the down-grading of the appellant and with regard to the termination of the appellant's services, no reasonable opportunity was given to the appellant either to defend himself or to show cause against the action proposed against him. Even if Article 311 was nto applicable to the appellant. Army Instruction No. 212 of 1949 and the Government of India Gazette Notification No. 95 of 1952 which were said to have been followed by the defendant in dealing with the case of the appellant were actually contravened, and consequently, the appellant is entitled to the declaration prayed for by him. His contention was that both the Army Instruction No. 212 of 1949 and the Government of India Notification No. 95 of 1952 were promulgated for the protection and benefit of a person like the appellant, and consequently, the appellant was entitled to the protection and safeguards provided therein and to the extent to which such protection and safeguards were denied to him, he was entitled to come to a Civil Court asking for the declaration he prayed for.

According to Shri Vohra, the downgrading of the appellant was inflicted on him avowedly by way of punishment and even the termination of the services of the appellant on the ground of his medical unfitness would amount to the removal of the appellant from service and would constitute a penalty, and consequently, he was entitled to the protection afforded by the Government of India Notification No. 95 of 1952. He also faintly suggested that even Article 311 of the Constitution would be applicable to the appellant.

8. The contention of Shri Saharya, who appeared for the respondent was that with regard to the down-grading of the appellant, even if there had been a contravention of Army Instruction No. 212 of 1949 that will nto enable the appellant to approach the Civil Court for relief since those Army Instructions were merely administrative directions nto conferring any right on a person like the appellant, and thereforee, the appellant cannto institute a suit for the relief which he prayed for under Section 9, Civil Procedure Code. Secondly, with regard to the termination of the services of the appellant on the ground of his having been found medically unfit, the contention of Shri Saharya was that such termination of services could nto be said to amount to removal by way of punishment and since there was no element of punishment present in such termination and since the termination was nto by way of penalty, the Government of India Gazette Notification No. 95 of 1952 did nto apply to the termination of the services of the appellant, and thereforee, the appellant cannto claim any relief on the ground of contravention of any provision contained in such Notification. As a preliminary to both these contentions. Shri Saharya contended that Article 311 has no application to a person like the appellant.

9. Both the counsel cited number of authorities in support of their respective contentions. Before I deal with the other contentions, I shall first dispose of the contention regarding the applicability of Article 311 to the appellant.

10. Article 309 of the Constitution uses the expression '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.' Article 310(1) uses the expression 'every person who is a member of a defense service or of a civil service of the Union or of an all-India service or holds any post connected with defense or any civil post under the Union.' Thus, it will be seen that while Article 309 uses the general expression 'public services and posts in connection with the affairs of the Union, Article 310 categorises them as defense service, civil service, all-India service, any post connected with defense or any civil post. On the other hand, Article 311 uses the expression, '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...'. Thus, out of the five categories mentioned in Article 310, viz. (1) defense service (2) civil service of the Union or civil service of a State (3) all-India Service (4) posts connected with defense and (5) any civil post under the Union or under a State, only three, viz. (1) civil service of the Union or a State (2) all-India service and (3) civil post under the Union or a State have been set out in Article 311.

The consequence of this is that a member of a defense service or a person who holds any post connected with defense is outside the scope of Article 311 of the Constitution of India though he falls within the scope of Articles 309 and 310. Admittedly, the appellant was nto a member of the defense services. The only other question is whether he held any post connected with defense. On the materials available on record, there is no doubt whatever that the appellant was holding a post in connection with defense. The case of Kapoor Singh Harnam Singh v. Union of India, : (1960)IILLJ536MP , related to a case of a Supervisor in the Military Dairy, Jabalpur. The learned Judge of the Madhya Pradesh High Court, in that case, took the view that the appellant in that case was holding a post connected with defense, and thereforee, was outside the scope of Article 311 of the Constitution. In Kailashchand Ratan Chand v. General Manager, Ordnance Factory, Khamaria Jabalpur : (1969)ILLJ611MP , the case was concerned with the removal of a Machinist in Ordnance Factory. The Madhya Pradesh High Court held that such a Machinist was nto a member of the civil service of the Union or an all-India service or a civil service of a State, nor did he hold a civil post under the Union or a State, but was holding a post connected with defense, and consequently, was nto entitled to the protection of Article 311. The matter has been concluded by the authority of a Supreme Court judgment in Jugatrai Mahim Chand Ajwani v. Union of India, dated 6-2-1967, in civil Appeal No. 1185 of 1965 reported in 1967 SLr 471 (SC). That case concerned with a person who joined the Military Engineer Service. Whether such a person could be said to be holding a civil post under the Union came up for consideration before the Supreme Court and it was decided that such a person was holding a post connected with defense.

Before their Lordships of the Supreme Court, an argument was advanced that only persons who hold ex-cadre posts in the Military and perform duties which are strictly performable by the defense forces hold posts connected with defense. In rejecting that argument, their Lordships observed as follows :--

In our judgment, the expression 'posts connected with defense' means posts which are auxiliary to or are directly related or incidental to the tasks performable by the defense forces, or require performance of duties on which the effective functioning of the defense forces both in times of peace and war depends.

In the light of this judgment of the Supreme Court, it must be held that with reference to the materials on record, the appellant herein was holding a post connected with defense. As a matter of fact, the learned counsel for the appellant did nto seriously controvert this position and as I pointed out already, he only faintly suggested that Article 311 might apply to the appellant

11. Thus, Article 311 nto being available to the appellant, the question that remains for consideration is whether the appellant is entitled to the relief prayed for as contended for by the learned counsel for the appellant with reference to his allegation that there has been a contravention of Army Instructions No. 212 of 1849 and the Government of India Notification No. 95 of 1952. No material has been placed before me to show under what authority. Army Instructions No. 212 of 1949 were issued. However, a printed copy of the Army Instructions produced before me shows that they were dated 25th June 1949 and they were signed by Shri H. M. Patel, Secretary to the Government of India. Army Instructions No. 212 of 1949 are captioned as 'Civilians paid from defense-services-Rules regarding Discipline.' Rule 1 of the same states that the said Rules apply to all permanent and temporary civilian Government servants, both gazetted and non-gazetted, paid from the defense Services Estimates.

Rule 2 provides that disciplinary action against a Government servant will nto be taken for an offence which has nto been clearly proved. Rule 3 enumerates seven penalties which may be imposed upon a Government servant for good and sufficient reasons as provided under the Rules and the third of the penalties enumerated is 'reduction to a lower post or time scale, or to a lower stage in the time scale'. Rule 4 refers to neglect of duty, inattention or disobedience rendering a Government servant liable to reduction from higher to a lower grade. Rule 5 provides that continued willful neglect or disobedience, gross inefficiency, fraud, dishonesty, gross misconduct and offences involving moral disgrace should be visited with dismissal or removal according as it is considered necessary or nto to bar an individual from re-employment.

It is desirable to extract fully Rules 6 to 8.

'6. Service of a Charge-sheet:--

No order of dismissal, removal or reduction shall be passed on a Government servant unless he has been informed in writing of the grounds on which it is proposed to take action, and he has been afforded an adequate opportunity for defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the persons charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case.

He will be required within a reasonable tune to put in a written statement of his defense and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs, an oral enquiry shall be held. At that enquiry oral evidence shall be heard as to such of the allegations as are nto admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and have such witnesses called as he may wish, provided that the officer conducting the enquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof.

In ease a Board of Inquiry Is held to Investigate into an incident and no formal charges have been framed against anyone at this stage, a Government servant, involved in the incident against whom disciplinary action is contemplated should subsequently on the basis of the findings of that Board of Inquiry, be served with a Charge Sheet and asked to put in a written statement in his defense within a reasonable time. He should also be furnished with a copy of the proceedings of the Board of Inquiry and asked whether he wishes further to examine or cross-examine any witness. If he expresses a desire to do so, the officer conducting the enquiry should arrange to summon the witness concerned provided that officer may, for special and sufficient reasons to be recorded in writing, refuse to call a witness.

Note 1 :-- This rule shall nto apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him.

Note 2:-- All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived, where there is a difficulty in observing exactly the requirements of the rule and these requirements could be waived without injustice to the persons concerned.

7. The defense of the Government servant referred to in the above rule should be carefully considered in the light of the evidence disclosed in the proceedings of the enquiry.

8. Notice to show cause :-- On completion of the enquiry after the punishing authority has considered the defense of the accused and arrived at a provisional conclusion in regard to the penalty to be imposed the accused must, if the penalty proposed is dismissal, removal or reduction, be called upon to show cause within a reasonable time nto ordinarily exceeding, a fortnight, against the particular penalty proposed to be inflicted.

Any representation submitted by the accused in this behalf should be duly taken into consideration before final orders are passed.'

It is necessary to quote an addition that has been made to Rule 8 mentioned above, which was introduced by way of Corrigendum on 1-4-1950:--

This is necessary to ensure compliance with the provisions of Article 311 of the Constitution of India, and with the provision of Section 240(3) of the old Government of India Act, 1935, in respect of cases occurring before 26th January, 1950.

12. On the basis of the concessions made before the lower Appellate Court that the department did nto furnish the appellant with copies of the report and proceedings of the Inquiry Officer while serving him with a notice to show cause as to why he should nto be demoted, Shri Vohra, the learned counsel for the appellant, contended that there had been a violation of Rule 8 referred to above, In that he was nto given a proper opportunity to show cause against the proposed penalty as contemplated by Rule 8. It may be seen that these provisions in the Army Instructions are more or less on the lines of the Civil Services (Classification, Control & Appeal) Rules and as a matter of fact, the addition to Rule 8 subsequently made may be due to either of two reasons: that is, the authorities were under the impression that the persons to whom the said Rules were applicable were entitled to the protection of Section 240(3) of the Government of India Act, 1935 or of Article 311 of the Constitution or in the alternative that even though they did nto come within the scope of those Constitutional provisions, still the authorities wanted to extend to the said persons the same safeguards and protection which are available to the persons governed by Section 240(3) of the Government of India Act or Article 311 of the Constitution of India.

13. There has been no serious controversy before me about the appellant nto having been given an effective opportunity as contemplated by the rules quoted above. The only point in controversy before me was whether a violation of that rule gave a person like the appellant a cause of action to proceed in a court of law, the contention of the appellant being that he has such a cause of action while the contention of the respondent being that the said Army Instructions did nto confer any right on a person like the appellant, and thereforee, he cannto file a suit claiming any relief on the basis of those instructions under Section 9, Civil Procedure Code.

14. Shri Vohra relied upon a judgment of the Madhya Pradesh High Court already referred to, viz., : (1960)IILLJ536MP , in support of his contention that violation of Rule 8 gives the appellant a cause of action and he particularly invited my attention to paragraph 18 of that Judgment which is as follows:--

'In the present case, as there was a patent contravention of Rule 8 of Army Instructions No. 212 of 1949, the dismissal was wrongful and illegal. By virtue 08 Rule 9 of the said Instructions, Article 311 of the Constitution was made applicable to the civilian employees connected with defense. Apart from that, Rule 8 specifically provided for the same safeguard as Article 311(2) of the Constitution.

Upon any view that may be taken on the applicability of Article 311 of the Constitution of India to the appellant's case, his dismissal was clearly wrongful and illegal, if nto unconstitutional. thereforee, the said order cannto be upheld in the present case.'

15. The reference to Rule 9 in the above said judgment is obviously a reference to the addition to Rule 8 made by way of corrigendum on 1-4-1950, mentioned by me already. Shri Vohra also relied upon a judgment of the Nagpur High Court in Laxminarayan Chironjilal Bhargava v. Union of India Air 1956 Nag 113. In that case also. Army Instructions No. 212 of 1949 came up for consideration. The petitioner in that case was reverted from an officiating post to the substantive post and he contended that it constituted the penalty of reduction in rank within the scope of R. 3 of Army Instructions No. 212 of 1949. While holding that on the facts of that particular case, the petitioner's reversion did nto amount to reduction in rank, the learned Judges observed that :--

If it is established that this clause (meaning Clause 3 of Army Instructions No. 212 of 1949) applies, then the petitioner is entitled to a relief from this Court.

16. As against these decisions, Shri Saharya invited my attention to the decision of the Punjab High Court in Union of India v. Ram Chand Beli Ram . In that case, one Subhedar Ram Chand had filed a civil suit for declaration that certain orders discharging him from service were void, illegal and inoperative. A Bench of the Punjab High Court held that such a suit was nto maintainable in a Civil Court under Section 9, Civil Procedure Code. The reasoning was that the plaintiff in that suit was nto a Civil servant, and thereforee, was nto entitled to the protection of Section 240 of the Government of India Act or Article 311 of the Constitution and in regard to defense services, the law remained always the same, viz., that a person holds office during the pleasure of the Crown and now the President, and consequently, such suits are impliedly barred on the principle that Courts are nto to countenance matters which are injurious to and against the public weal. I may point out here that in that case the High Court came to the conclusion that even on merits the order of discharge passed against the plaintiff was nto wrongful

The next decision relied on by Shri Saharya was Dass Mal v. Union of India, . In that case, the plaintiff was governed by the Army Act and was discharged from service. He filed a suit for declaration to the effect that his discharge was void and he was entitled to remain in service up to the age of 60 years. While holding that the discharge of the plaintiff was in accordance with the rules made, and by the authority prescribed, under the provisions of the Army Act, the Court proceeded to observe that neither Section 240(3) of the Government of India Act nor Article 311 of the Constitution of India was available to him and all Army personnel whether belonging to the defense services or coming within the phrase 'connected with defense services' hold office at the pleasure of the Crown and now at the pleasure of the President, and a suit cannto be brought for infringement of any rules, as held by the Privy Council in Venkata Rao v. Secretary of State 0043/1936 .

The next case relied on by Shri Saharya was Tara Singh Ujagar Singh v. Union of India Air 1960 Bom 101. In that case, the plaintiff who was a Sub-Divisional Officer and was employed as a Civilian in defense services, filed a suit, inter alia, for declaration that the order dismissing him from service was illegal and void and he continued in the service of the Union and he also prayed for arrears of salary on that basis. In that case, the question was actually raised that the dismissal of the plaintiff was contrary to Army Instructions No. 212 of 1949 dated 25-6-1949. Desai, J. on this point observed as follows:--

The information given to me as regards the 'Army Instructions' is nothing more than the production of 'Army Instructions' as evidence in this case. Mr. Gauba contends that these rules appearing hi the Army Instructions must have been enacted under Section 241 of the Government of India Act. Neither side, however, is in a position to give me correct information as to under what provisions these Army Instructions have been framed. It appears to me that these are the subject matter of a Government resolution and made for the purpose of guidance of military authorities in connection with civilians employed in defense service. These rules have no binding force in themselves. These rules are only directory rules. They do nto appear to have been made under provisions of any particular statute. These rules have in any event no force of affecting the provisions of Article 310 regarding the tenure of office of persons employed In the service of Government of India or State. The tenure of office of persons employed in such service continues to be at pleasure of the President or the Governor or the Rajpramukh as the case may be.

Army Instructions No. 212 of 1949 came to be considered by a Bench of the Calcutta High Court in Atindra Nath Mukherjee v. G. F. Gillot, : AIR1955Cal543. In that case, the appellant was holding a post in one of the Indian Ordnance Factories under the control of the Ministry of defense, Government of India, and was removed from service as a consequence of an inquiry held into certain charges framed against him. The complaint of the appellant was that though charges were framed and inquiry was conducted in accordance with Rule 6 of Army Instructions No. 212 of 1949, when the notice to show cause against the proposed punishment was issued to him, the findings of the Inquiry Committee were nto sent to him. While holding that in the circumstances of that particular case, it could nto be said that the appellant was entitled to be furnished with a copy of the report of the Board of Inquiry, the learned. Judges made certain observations with regard to Army Instructions No, 212 of 1949. The learned Judges pointed out that the only basis of the Army Instructions was a resolution of the Government of India in the Military Department being Resolution No. 2228 published on 22-12-1917, but in exercise of what authority that Resolution was passed and whether it was law or an executive decision could nto be stated by anyone.

After surveying the position of the defense services under the different Government of India Acts and the Constitution of India, the learned Judges held that Army Instructions No. 212 of 1949 could nto be taken to be a 'law' within the meaning of Article 372(1) of the Constitution on the basis of a concession made by the counsel in that case. The learned Judges pointed out that if the Army Instructions were nto 'law' within the meaning of Article 372(1) of the Constitution, they could nto be 'laws' for the purpose of Article 313 of the Constitution as well. Finally the learned Chief Justice with whom the other learned Judge agreed expressed as follows;---

'It appears to me that In the present state of our knowledge which has certainly nto been expanded by the efforts made by the respondents, it is nto possible to say further than this that the defense services are quite distinct from the civil services and that any provisions which are expressly and specifically limited to civil services or persons holding civil posts in such services cannto be applicable to the defense services or persons holding civil posts in them.

Even this I would nto finally lay down and the observation I have just made must be treated only as a tentative one. Since the status and the interests of a very large class of important public servants depend upon the true interpretation of the relevant rules and laws applicable to defense services and the legislative provisions upon which they are based, it would be wrong to record a final conclusion in the absence of a proper argument.'

Even before me, no materials have been placed to show on what authority and under what circumstances the said Army Instructions were issued. But the argument that was advanced on behalf of the respondent was that the said Army Instructions were nto made pursuant to any statutory powers, and consequently, they are merely executive instructions issued for the guidance of the officers in the department and they do nto confer any right on any particular employee, which he can enforce in a Court of law. I am of the view that it is nto possible to lay down as a general principle of law that directions or instructions issued under a statute must be taken to confer rights on parties which may be enforced in a Court of law while directions and instructions issued nto pursuant to any statutory power should be treated only as administrative instructions issued for the guidance of the officers of the department, nto conferring any rights on individuals, Whether particular directions or instructions confer any rights on any individual officer, which may be enforced in a Court or nto must be decided with reference to the authority by whom the said directions or instructions were issued, the contents of those directions or instructions and the context in which and the purpose for which they were issued.

Even directions issued pursuant to statutory powers can constitute merely administrative directions nto conferring any rights on any individual as has been held by the Supreme Court in Raman and Raman Ltd, v. State of Madras : AIR1959SC694 and in Abdulla Rowther v. State Transport Appellate Tribunal, Madras Air 1959 Sc 896, with reference to the directions issued by the Government of Madras under Section 43-A of the Motor Vehicles Act. Thus, a simple dichotomy between directions and instructions issued pursuant to statutory powers alone conferring rights on parties, capable of being enforced in a Court of law and directions or instructions issued nto pursuant to any statutory power nto conferring such rights, is neither tenable nor possible. It was nto contended before me that whenever any directions or instructions are issued nto in the exercise of any statutory power, as an inflexible rule of law, they must be held nto to confer any rights on any individual.

17. Now the point that I have to consider is whether a person like the appellant can come to a Court complaining of contravention of the Rules contained in Army Instructions No. 212 of 1949 and seek relief on that basis. Several features will have to be noticed with regard to these Army Instructions in question. Firstly, they are issued pursuant to a Resolution of the Government of India and as I pointed out already, these Instructions were signed by the Secretary to the Government of India, Ministry of defense. Secondly, these Instructions are of a general nature applicable to all permanent and temporary civilian Government servants both gazetted and non-gazetted paid from the defense services estimates. Thirdly, these Instructions relate to a vital part of the conditions of service of the said employees viz., dealing with the disciplinary action that may be taken against them. Fourthly, these Instructions are based more or less on the Civil Services (Classification, Control & Appeal) Rules, dealing with the disciplinary action that may be taken against civilian officers. Fifthly, these Instructions are intended to apply only to civilian Government servants paid from the defense services estimates and nto to regular defense personnel. Sixthly, they were intended to secure compliance with the provisions contained in Section 240(3) of the Government of India Act, 1935 or Article 311 of the Constitution of India, as pointed out above.

Taking these features into account, can it be said that they were intended to be merely administrative directions solely for the guidance of officers of the department and nto intending to confer any rights on the civilian employees concerned? It may be that the civilian employees were nto entitled to the protection under Section 240(3) of the Government of India Act, 1935 or Article 311 of the Constitution of India, But that does nto automatically mean that the Government of India cannto extend the safeguards and the protection which the said Constitutional provisions afford, to the civilian employees paid from the defense services estimates as well. Just as it is necessary and important that in relation to matters of defense, the powers of the State should nto be subject to undue restriction, it is equally necessary and important that civilian employees like the appellant should also have a sense of security in their employment and should nto feel that they are liable to be dealt with arbitrarily at the whims and fancies of their superior officers.

It is pertinent to point out that these Instructions are applied only to civilian employees paid out of defense services estimates and nto to regular Army personnel who are governed by separate statutes like the Army Act. When the Government of India issued these Instructions, it cannto be assumed that they never intended to confer any right or protection on the employees concerned, on such a vital matter, as disciplinary action that may be taken against them. Taking these aspects into consideration, I am of the view that it cannto be held that there is anything in Section 9, Civil Procedure Code, which will bar a suit like the one filed by the appellant herein. I am unable to see anything against public policy or general weal in entertaining such a suit thereforee, I am of the view that the appellant was entitled to file the suit for a declaration that his down-grading was wrongful and was in contravention of the provisions contained in Army Instructions No. 212 of 1949.

I may also mention that, as I have pointed out already, the respondent in the written statement took up the stand that the procedure prescribed by Army Instructions No. 212 of 1949 was followed in taking action against the appellant and once the authorities invoked the said Army Instructions in support of the action taken against the appellant, they must fully comply with the provisions contained in the said Instructions and it is nto open to them to contend that even if there had been any contravention of the provisions contained in the said Army Instructions, a person like the appellant should nto come to the Court and complain against such contravention. thereforee, I am of the opinion that the appellant is entitled to a declaration that his down-grading was nto lawful in that he was nto given a reasonable opportunity, to defend himself as contemplated by Army Instructions No. 212 of 1949.

18. Shri Vohra, appearing for the appellant, wanted to contend in the alternative that even if it is held that the appellant cannto file a suit on the allegation of contravention of the provisions of the said Instructions, still he was entitled to file the suit on the ground of contravention of the Rules contained in the Government of India Notification No. 95 of 1952. The said Government of India Notification containing 'The Civilians in defense Services (Classification, Control & Appeal) Rules, 1952,' promulgated by the President, in exercise of the powers conferred by the proviso to Article 309 of the Constitution, was published in the Gazette on 2-2-1952. I may straightway mention that these rules, in matters of discipline, are similar to the Civil Services (Classification, Control and Appeal) Rules, framed from time to time.

Rule 31 of the said Rules is as follows;

31. Nothing in these rules shall operate to deprive any person of any right of appeal, which he would have had if these rules had nto been made, in respect of any order passed before they came into force. An appeal pending at the time when, or preferred after, these rules came into force shall be deemed to be an appeal under these rules and Rule 24 or 26 (as the case may be) and Rule 25 shall apply as if the appeal were against an order appealable under these rules.

I do nto think that Shri Vohra can derive any assistance from Rule 31. The assumption of Shri Vohra was that on 2-2-1952 when these Rules came into force, his appeal against the order of down-grading was pending, and consequently, his appeal should be disposed of as if it were an appeal against an order appealable under these rules. Factually, according to the appellant's own case in his plaint, on 14-5-1951 he filed an appeal against the order of down-grading to the Hon'ble the defense Minister to the Government of India and the said appeal was dismissed on 20-12-1951. Thus on 2-2-1952, when these Rules came into force, there was no appeal of the appellant pending as contemplated by Rule 31 of the Rules, However, Shri Vohra contended that on 2-2-1952 his memorial against the order in appeal was pending. But in my opinion such a memorial cannto constitute an appeal within the meaning of Rule 31, and thereforee, the appellant cannto place any reliance on Rule 31 for the purpose of contending that his case should have been disposed of under these Rules of 1952 and the action taken against him was contrary to these Rules.

19. The other aspect of the case relates to the termination of the services of the appellant on the ground of his being found physically unfit by a Medical Board. As pointed out by me already, the appellant was asked to appear before a Medical Board at Dehradun on (24)-12-1951. On that date, a Medical Board consisting of three officers issued a certificate with reference to Article 447(a) of the Civil Service Regulations and paragraph 283 of Regulations for the Medical Services of the Army in India. In that certificate they have stated that they considered that the appellant was suffering from 'Osteo Arthritis; Rt Sacro illac' and in consequence thereof, he was completely and permanently incapacitated for further service of any kind in Government Service. This certificate was approved by A. D. M. S. on 7-1-1952 as revealed by Ex. D-49. It is admitted that no Information whatever of the finding of the Medical Board was communicated to the appellant

With reference to an application for grant of leave to the appellant, by a communication dated 9/11-2-1952 the appellant was informed that he had already been invalided by the Medical Board held at Dehradun on 24-12-1951 and the question of grant of leave as recommended by the Civil Surgeon. Dehradun from 24-12-1951 onwards did nto arise and this has been filed as Ex. P-42. Ex. D-64 dated 28-3-1952 shows that the Director, Remount Veterinary and Farms, on that date accorded administrative approval to the invalidment of the appellant with effect from 24-12-1951. The appellant-herein in the lower court had summoned the Director to produce or cause to be produced about 26 documents and Major R. C. Dutta appeared in response to the summons and he has been examined as E. W. 6. He has deposed:--

The position regarding Item No. 22 is this, that besides the order dated 24-12-1951, there is no other order of termination of the plaintiff's employment,

The appellant herein repeatedly asked for a copy of the report of the Medical Board and he was nto given any such copy and it was claimed both in the correspondence between the appellant and the Department and in the written statement in the suit that the proceedings of the Medical Board were confidential under paragraph 399 of Regulations for the Medical Services of the Army in India. Against the background of the facts, the contention of Shri Vohra was that he was nto given a copy of the proceedings of the Medical Board to enable him to file an appeal against the said opinion since he did nto admit that he was suffering from any such disease and he had produced certificates to that effect and under the regulations he had a right to file such an appeal and that right has been denied to him. He further contended that the termination of the appellant's services would amount to the removal of the appellant from service, and consequently, his services could nto have been terminated without giving him an opportunity to show cause against the action proposed to be taken.

The further contention of the learned counsel was that as admitted by the respondent in the written statement itself, the termination of the services of the appellant was effected in accordance with the Government of India, Notification No. 95 of 1952, viz., the Civilians in defense Services (Classification, Control & Appeal) Rules, 1952, and according to those Rules, he was entitled to an opportunity to show cause against the proposed action and such an opportunity was admittedly nto given to him. Notwithstanding that it was contended in the written statement that the action was taken in accordance with the Government of India Notification No. 95 of 1952, the argument of the learned counsel for the respondent before mo was that the termination of the services of the appellant on the ground of his physical unfitness would nto constitute a penalty of removal from service as contemplated by the said Civilians in defense Services (Classification, Control & Appeal) Rules, 1952, and the termination of the appellant's services was a simple discharge from service on account of physical unfitness and Article 311 of the Constitution nto being applicable to the appellant. Article 310 would cover the case.

Before I deal with the aspect whether the termination of the appellant's services would amount to removal from service within the scope of the said Rules or not, I shall dispose of the point regarding failure to furnish the appellant with a copy of the opinion of the Medical Board. Paragraph 399 of the Regulations for the Medical Services of the Army in India, on which reliance has been placed for the claim that the proceedings of the Medical Board constituted confidential documents is as follows;--

'399. Proceedings Confidential :--

Proceedings of a medical Board will be treated as confidential except as noted below:--

(i) In the case of an officer who is found fit to return to duty the president of the Medical Board will so inform the officer and will instruct him to report himself for duty forthwith.

(ii) In the case of an officer who is found permanently unfit, the President will inform the officer of the Board's opinion as to the period of unfitness.

(iii) In the case of an officer who is found permanently unfit, the President will inform the officer of the opinion of the board, making it clear to him that the information should nto be acted upon until it is confirmed by the War Office. India Office or Army Headquarters.

(iv) In the case of officers suffering from tropical disease, in which further treatment is required, the importance of such treatment being carried out by recognised specialists in the subject (either at Q. A. Hospital Mollbank, or elsewhere) should be explained by the President of the Medical Board. In this connection, see also paragraph 266.'

Thus, the said paragraph itself clearly provides that the president of the Medical Board should inform the officer concerned of the opinion of the Board, at the same time making it clear to him that the information should nto be acted upon until it is confirmed by the War Office, India Office or Army Headquarters. As far as the facts are concerned, the appellant was nto informed by the President; of the Medical Board of the opinion of the Medical Board and subsequently, a copy of the opinion of the Medical Board was also nto furnished to the appellant. thereforee, it can be said that even this paragraph 399 was nto complied with in the case of the appellant Though it cannto be said that this paragraph conferred any right on a person like the appellant, still it is clear that the appellant was kept completely in the dark as to the grounds on which he was found medically unfit and his services were purported to have terminated, thus preventing him from taking any further proceedings that may be available to him. One other aspect of the matter concerning this is the power under which the appellant was asked to appear before the medical board and the power under which his services were terminated.

Note 1 to Article 197(c) of the Civil Service Regulations contains the following sentence:--

When an officer applies for repeated grants of medical leave within short intervals, the attention of the Medical Board should be drawn to his case with a view to their carefully considering the term of absence necessary for his complete recovery.

It is this sentence that was relied on behalf of the respondent for placing the appellant before the medical board.

I am of the view that though the above sentence supports the contention of the respondent generally no specific power is necessary for a superior officer asking any of his subordinate officers to appear before a medical board when the said superior officer finds that the concerned officer is repeatedly applying for medical leave within short intervals. Further, on the ground that the authorities had no power to ask the appellant to appear before the Medical Board, the termination of the appellant's services cannto be held to be unlawful because it was based on the opinion of such a medical board.

20. The more important question is concerned with the power of the authorities to terminate the appellant's services on the ground that he was found unfit by a medical board. On behalf of the respondent reliance was placed on Articles 442 and 443 of the Civil Service Regulations and paragraphs 427 and 428 of the Regulations for the Medical Services of the Army in India. I am of the view that none of these provisions cover the case In hand. Article 442 of the said Civil Service Regulations deals with the procedure to be followed when a Government servant applies for Invalid Pension. Article 443 follows it up by providing what the examining Medical Officer should do.

21. Paragraphs 427 and 428 of the Regulations for the Medical Services of the Army in India, are as follows:---

'Procedure for Invaliding :-- When it is considered that an Indian Officer, trained soldier or follower should be invalided from the service a statement of the case with the Medical history sheet will be forwarded by the O. C. hospital to the A. D. M. S. If the Adms concurs he will return the documents and direct that a medical board be held. The O. C. hospital will then inform the O. C., the individual's unit and request him to forward I. A. F. Y.-1948 and I. A. F. M 1231 (in cases other than those of injury).

Recruits will he dealt with as laid down in Regulations for the Army in India. As a general rule the recruits should nto be invalided for defects that were present on enlistment.

428: --Finding of the Board :-- The Medical Board having recorded their opinion on I. A. F. Y.-1948 will return all the documents to the O. C. hospital, for transmission to the A. D. M. S, If the A. D. M. S. concurs in the opinion of the board he will endorse I. A. F. Y.-1948 accordingly and return the documents to the O. C. hospital who will then proceed in accordance with the instruction on I. A. F. Y.-1948. If the A. D. M. S. does nto concur in the opinion of the board the procedure will be as laid down in last sentence of paragraph 401 (b).'

Neither of these two paragraphs expressly provides for the termination of the service of a Government servant on the basis of the opinion of the Medical Board or specifies the authority who can so terminate, I may point out here, that these Regulations for the Medical Services of the Army in India have nto been shown to be made under the proviso to Article 309 of the Constitution of India or in exercise of any other statutory power. In fact, these Regulations are old ones and have been in existence long before the commencement of the Constitution. As a matter of fact, in para 10 of the plaint, the appellant had reproduced an extract from a communication of the Government dated 8-3-1954 addressed to the appellant with respect to his termination of services and the same was admitted to be correct in para 10 of the written statement.

The said extract is as follows :--

You were found to be suffering from 'Osteo-arthritis'. A duly constituted Medical Board after examining you, found you completely and permanently incapacitated for further service of any kind. The Government, thereforee, had to invalid you out of service under the existing rules.

With reference to this passage, I repeatedly asked the learned counsel for the respondent to bring to my notice the 'existing rules' which authorised the termination of the appellant's services and the authority who was specified to so terminate. Except referring to the provisions in the Civil Service Regulations and the paragraphs in the Regulations for the Medical Services of the Army in India referred to by me already, the learned counsel could nto place any other rules before me. As I pointed out already, those Articles and paragraphs do nto confer any such power on any specified authority.

22. It is against this background that I shall have to consider the contention of the learned counsel for the appellant that the termination of the appellant's services amounted to removal from service and admittedly the appellant nto having been given an opportunity to show cause, the termination of the services was unlawful. The learned counsel relied upon a decision of the Allahabad High Court in Kanshi Ram Anand v. The State of U. P. : AIR1956All330. A learned Judge of the Allahabad High Court after referring to the provisions contained in Rules 49 and 55 of the Civil Services (Classification, Control & Appeal) Rules, came to the conclusion that the discharge of the appellant from service in that case on the ground that he was physically unfit amounted to removal as he was in permanent employment and was entitled to the protection guaranteed under Rule 55, and consequently, before he could be discharged, he was entitled to a notice and a hearing when the authorities proposed to terminate his services.

The learned counsel also relied on a decision of the Calcutta High Court in Union of India v. Someshwar Banariee : AIR1954Cal399. In that case, a Railway servant was discharged from service on the ground that he was declared to be unfit by a medical Officer. The Calcutta High Court observed as follows:--

It was faintly suggested that removing a man because he is physically unfit is nto dismissing him. Dismissing a man is putting an end to his employment. He may be dismissed rightly or wrongly, but the act of dismissal is the act of terminating his employment. It matters nto whether his employment is terminated because of dishonesty, corruption or bad health. In all three cases he has been dismissed, though in the first two cases his instant dismissal might be morally justified, whereas in the last case it may be very harsh and unjust. In all the cases, however, the service has been terminated and he has been dismissed. It seems to me that dismissal on the ground of inefficiency due to physical incapacity clearly comes within the provisions of Section 240, Government of India Act and that being so, the Rule of the Railway, namely, Rule 1709(b) is ultra virus the provision of the Government of India Act and I think clearly ultra virus the present provisions of the Constitution, though the Constitution has no application to this particular case.

It may be noticed that these two cases dealt with the discharge of a Government servant from service on the ground of his unfitness as found by medical officers. With reference to the observation in the second case, one comment I would like to make is that the said observations were made before the Supreme Court in a number of decisions clarified the legal position in this behalf. (Sic)

23. In addition to the above two decisions, Shri Vohra, strongly relied upon the decision of the Supreme Court in Moti Ram Deka v. General Manager, North East Frontier Railway, : (1964)IILLJ467SC .

In that case, the Supreme Court was considering the validity of Rules 148(3) and 149(3) of the Railway Establishment Code, (1959) Vol. I. Strong reliance was placed on the following passage in that judgment.

A person who substantially 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, and go, if by Rule 148(3) or Rule 149 (3) such a termination is brought about, the Rule clearly contravenes Article 311(2) and must be held to be invalid.

I must point out that the Supreme Court in that case was considering the case of a person who was entitled to the protection conferred by Article 311 of the Constitution. With reference to that protection, the above said observation was made and since the said rules did nto give effect to that protection, the said rules were held to be ultra vires. Here, we are concerned with the case of a Government servant who is nto entitled to the protection of Article 311 of the Constitution. The argument of the learned counsel for the appellant is that even when Article 311 is nto applicable in view of the provisions contained in the Civilians in defense Services (Classification, Control & Appeal) Rules, 1952, action can be taken against the appellant only in accordance with those Rules and so far as the procedure prescribed by those Rules had nto been followed in terminating the appellant's services, the said termination must be held to be unlawful. As I pointed out already, the Civilians In defense Services (Classification, Control and Appeal) Rules, 1952, contain provisions similar to the provisions contained in Civil Services (Classification, Control and Appeal) Rules, Rule 13 of the Rules provided that the penalties mentioned therein may for good and sufficient reasons, and as thereinafter provided be imposed upon persons subject to the said rules and enumerated the penalties one of which is removal from service of the Government which does nto disqualify from future employment.

24. Rule 15 prescribed the procedure to be followed before imposing any such penalties. These Rules apply to every person paid from defense services estimates and nto subject to the Army Act, 1950, the Indian Navy (Discipline) Act, 1934, and the Indian Air Force Act, 1950, who is in the whole time employment of the Government of India under the Ministry of defense. In view of the decision of the Supreme Court in State of Uttar Pradesh v. Babu Ram : 1961CriLJ773 , of a Full Bench decision of the Punjab High Court in Engineer-in-Chief Army Headquarters v. P. H. Laxminarayanan 2 1966(2) P&H; 305 (FB) and of another Full Bench decision of the Punjab High Court in Sham Lal v. Director Military Farms 2 1967(1) Punj 649 = AIR 1963 P&H; 312 (FB), the learned counsel for the respondent conceded before me that the Civilians in defense Services (Classification, Control & Appeal) Rules, 1952, being Rules made by the President under the proviso to Article 309 of the Constitution, any non-compliance with those Rules would be justiciable.

However, the attempt of the learned counsel was that the procedure prescribed in the said Rules will apply only when a person like the appellant was sought to be removed from service by way of punishment or penalty and the discharge of the appellant in this case on the ground of physical unfitness was nto by way of penalty or punishment, and consequently, the said Rules did nto apply; since Article 310 of the Constitution applied to the appellant, he held office during the pleasure of the President and consequently, when in exercise of that pleasure, the appellant's services were terminated, he cannto complain in a Court of law. Because of the view I take on this latter submission of the learned counsel for the respondent I am nto expressing any final opinion whether the termination of the services of the appellant on the ground that he was found to be medically unfit would amount to removal from service within the meaning of the said Rules or not. Assuming that the argument of the learned counsel for the respondent that the termination of the services of the appellant would nto amount to removal, directed as a measure of punishment or penalty, and thereforee, the said Rules did nto apply to the case of the appellant, is well founded, still the question remains whether the appellant has been properly and lawfully discharged from service.

25. I have already stated the facts as to how the appellant was informed that he was invalided. On 24-12-51 the Medical Board gave its certificate and on 7-1-1952 the A. D. M. S. endorsed his approval on the certificate. On 9/11-2-1952, the Assistant Director, Remount Veterinary Farms informed the appellant that he had already been invalided by the Medical Board held in Dehradun on 24-12-1951. On 28-3-1952, the Director, Remount Veterinary Farms accorded administrative approval to the invalidment of the appellant on medical grounds with effect from 24-12-1951. Even as late as on 30-4-1952, the appellant addressed the Assistant Director requesting him to let the appellant know definitely as to what orders were passed on the report of the Medical Board invalidating the appellant and to supply the appellant a copy of the said order, as such an order had nto yet been communicated to him (Ex. P-18). To this, on 7-5-1952, the Assistant Director sent a reply stating that the appellant was completely and permanently incapacitated for further service of any kind in Government service, by the Medical Board held at Dehradun on 24-12-1951 and Drvf had accorded approval for the appellant's invalidment on medical grounds from that date (Ex P-19). It is significant to note that there was no mention of any authority in the department terminating the services of the appellant on any particular date. Again on 7-6-1952, by Ex. P-23, the appellant wrote to the Assistant Director, inter alia, as follows:--

The Medical Board could only make a report as to the state of my health, but it is the official function of the Drvf to pass an order on that report. I have asked for a copy of the actual order passed by the Director, Remount Vety. & Farms, Army Hqrs; New Delhi, which may kindly be expedited.

Even to this, the reply on 21-6-1952 was that the Drvf had accorded approval for the appellant's invalidment from 24-12-1951 and the appellant was informed that no other document could be supplied to him (Ex. P-24). From these facts, it cannto be said that any particular authority on any particular date passed an order terminating the services of the appellant on the basis of the opinion of the Medical Board. I have again already extracted the evidence of Major Dutta to the effect that apart from the order dated 24th December 1951 there was no other order terminating the services of the appellant. As pointed out by me already, on 24-12-1951, there was no order terminating the appellant's services and all that happened on that date was that the appellant was examined by the Medical Board and the Medical Board gave its certificate. Even assuming that the Medical Board, on 24-12-1951 or the Assistant Director on 9/11-2-1952 or the Director on 28-3-1952 had terminated the appellant's services, the question still remains whether they had the authority to so terminate.

The Supreme Court in Air 1981 Sc 751, already referred to, with reference to Article 309 of the Constitution observed as follows;--

A law made by the appropriate Legislature or the rules made by the President or the Governor, as the case may be; under the said Article may confer a power upon a particular authority to remove a public servant from service; but the conferment of such a power does nto amount to a delegation of the Governor's pleasure. Whatever the said authority does la by virtue of express power conferred on it by a statute or rules made by competent authorities and nto by virtue of any delegation by the Governor of his power. There cannto be conflict between the exercise of the Governor's pleasure under Article 310 and that of an authority under a statute, for the statutory power would be always subject to the overriding pleasure of the Governor.

The Supreme Court further observed in that case:--

The power to dismiss a public servant at pleasure is outside the scope of Article 154 and, thereforee, cannto be delegated by the Governor to a subordinate officer, and can be exercised by him only in the manner prescribed by the Constitution.

The Supreme Court again observed as follows in Moti Ram Deka v. N. E. Frontier Railway : (1964)IILLJ467SC :--

The pleasure of the President or the Governor mentioned in Article 310(1) can thus be exercised by such person as the President or the Governor may respectively direct in that behalf, and the pleasure thus exercised has to be exercised in accordance with the rules made in that behalf. These rules, and indeed, the exercise of the powers conferred on the delegate must be subject to Article 310 and so. Article 309 cannto impair or affect the pleasure of the President or the Governor therein specified.

Thus, It Is clear that the services of a Government servant like the appellant to whom Article 311 of the Constitution is nto applicable can be terminated by the President at his pleasure under Article 310 of the Constitution. If the President himself does nto exercise that pleasure it must be exercised by some other authority specified in a statute enacted or Rules made under Article 309 of the Constitution and in accordance with the provisions contained in the said statute or the rules. If the pleasure is nto so exercised, then it is no exercise of the, pleasure at all. Here, it is nto the case of anybody that it was the President who in exercise of his pleasure under Article 310, terminated the services of the appellant. thereforee, the appellant's services could have been terminated only by a specified authority designated by the Rules made under the proviso to Article 309 and in accordance with the said rules.

Assuming that either the Medical Board on 24-12-1951 or the Assistant Director on 9/11-2-1952 or the Director on 28-3-1952 terminated the appellant's services, no Rule made by the President under the proviso to Article 309 of the Constitution conferring such a power on any of them was brought to my notice. Nor was it the case of the respondent that there was an order by any other authority terminating the services of the appellant, apart from these three and such authority had been authorised by Rules made under the proviso to Article 309 to terminate the services of the appellant. As a matter of fact, as pointed out by me already, no Rule at all was brought to my notice expressly conferring a power on any authority to terminate the services of a Government servant like the appellant on the ground of his physical unfitness certified by the Medical Board. Consequently, it must be held that in this case, the appellant's services had nto been terminated as provided for in Article 310 read with Article 309 of the Constitution. Thus, the termination of the appellant's services was unlawful, and consequently, the appellant is entitled to the declaration which, he has prayed for in this behalf.

Therefore, I allow the second appeal, and decree the suit of the appellant with costs throughout. The appellant is entitled to a decree declaring that the down grading of the appellant from the post of temporary Manager to the post of Assist ant Supervisor was unlawful and the termination of his services was also unlawful and the appellant remain ed a temporary Manager, Remount Veterinary Farms on the date of the institution of the suit which gave rise to the present second appeal. Certified that this is a fit case for appeal.

26. Appeal allowed.


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