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Prem Chand Bhatia Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 422 of 1973
Judge
Reported inILR1974Delhi258; 1975LabIC715
ActsConstitution of India - Article 310(1)
AppellantPrem Chand Bhatia
RespondentUnion of India
Advocates: B.L. Chawla,; R.L. Tandon and; Anil Bhatnagar, Advs
Cases ReferredKapoor Singh Harnam Singh v. Union of India and
Excerpt:
.....exercised by the president alone. - - union of india (1959)illj167sc (1) it was in this context that the supreme court on page 304 of the report said that article 311 being prohibitory in form had to be read as a qualification or proviso to article 310(1). there are likewise other articles like articles 124, 148, 218 and 324 of the constitution which make specific provisions in regard to the tenure and which would fall within the ambit of the opening words of article 310. (9) observations of the supreme court in state of uttar pradesh and others v......farms, army headquarters new delhi and others (5) where it was held that non-compliance with service rules framed under art. 309 in case of a civilian in defense services would be justiciable in spite of the doctrine of the president's pleasure under article 310. this was a case of compulsory retirement under the rules and not where the president exercised his 'pleasure' under article 310(1). (13) the learned counsel next referred to kapoor singh harnam singh v. union of india and others : (1960)iillj536mp , (6). here also, the position was the same and the question before us was not at all mooted in that case. the appellant was dismissed after inquiry. (14) learned counsel then contended that on december .21, 1971, the petitioner was suspended under the rules and that the rules.....
Judgment:

S.N. Shankar, J.

(1) The question for decision in this petition is as to the content and scope of clause (1) of Article 310 of the Constitution in the context of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 in relation to civil personnel in defense service in the matter of termination of the services by the President.

(2) The petitioner joined service on June 12, 1965 in the Research and Development Organisation, defense Science Laboratory under the Government of India in the Ministry of defense as Junior Scientific Assistant. After completing the probationary period of three years he was declared quasi-permanent. On December 7, 1971, the Administrator of the Union territory of Delhi in exercise of powers under sub-section (1) of section 3 of the Maintenance of Internal Security Act, 1971 directed that he be detained with a view to preventing him from acting in a manner prejudicial to the defense of India and to the security of the Union Territory of Delhi. In pursuance of the order he was actually detained with effect from December 8, 1971. The grounds on the basis of which the petitioner was detained were also served on him on December 14, 1971. By a subsequent order dated December 18, 1971, however, the detention order was revoked. By another order dated December 21, 1971 he was suspended from service with effect from December 8, 1971, the date of his detention in terms of sub-rule (2) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules 1965, hereafter called 'the Rules'. By order dated January 1, 1973 his services were then terminated by the impugned order of the President acting under clause (1) of Article 310 of the Constitution. In the writ petition, the petitioner has challenged this order.

(3) At one stage during trial there was dispute between the parties whether the impugned order was an order passed by the President himself but the respondents produced the original file containing the order. In fact Shri Tandon brought this file with him at the time of arguments also and this has put an end to the controversy and it has not been urged before us that he impugned order was not passed by the President himself under his own hand.

(4) Shri Chawla, appearing on behalf of the petitioner, in support of the petition, urged that even though the petitioner was not entitled to the protection of Article 311, but the Rules framed by the President himself under Article 309 governed his service conditions. Rule 3 of the Rules, he said, applied to every government servant including every civilian government servant in the defense services and the petitioner's case did not fall in any of the clauses (a) to (e) of this Rule which enumerated cases to which these Rules did not apply. Procedure for imposing major penalities on the Government servant covered by these Rules, argued the learned counsel, was provided by rule 14 of the Rules and termination of services, which is a major penalty according to rule 11 of the Rules could not be inflicted without holding an inquiry according to this Rule.

(5) Shri R. L. Tandon, appearing on behalf of the Union of India. did not dispute that the Rules applied to the petitioner but he argued that a civilian in defense service held his post at the pleasure of the President under Article 310 of the Constitution and that this pleasure was in no manner controlled by the Rules.

(6) The Articles relevant for decision of this controversy are Articles 309 and 310 of the Constitution as the Rules have been framed by the President under Article 309 and the nature of the tenure of office of persons serving the Union or the State is provided by Article 310. Article 309 'subject to the provisions of this Constitution' empowers the Legislature to make Acts to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. Proviso to the Article invests the President or such other person as he may direct in terms of the proviso to make rules regulating the recruitment and the conditions of service of person? appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article. Article 310 starts with the words 'except as expressly provided by this Constitution' and reads as under:

310.'(1) Except as expressly provided by this Constitution, 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, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State'. (2)...............................................'

(7) The opening words of Article 309 show that the Act framed by the Legislature or the Rules framed under the proviso to Article 309 have to be subject to the provisions of the Constitution but unlike this, the opening words in Article 310 providing for the tenure of the service personnel show that the tenure mentioned there, in every case, shall be at the pleasure of the President 'expect as expressly provided by this Constitution'. For the limitation on the pleasure of the President in regard to tenure, thereforee, we have to look only to a provision in the Constitution itself providing to the contrary. One of such provisions is Article 311. It provides that no person who is a member of the Civil Service of the Union or of an all-India service or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed and except after inquiry conforming to clause (2) of Article 311. The pleasure of the President is, thereforee, qualified to the extent of the provision of this Article of the Constitution.

(8) In Khem Chand v. Union of India : (1959)ILLJ167SC (1) it was in this context that the Supreme Court on page 304 of the report said that Article 311 being prohibitory in form had to be read as a qualification or proviso to Article 310(1). There are likewise other Articles like Articles 124, 148, 218 and 324 of the Constitution which make specific provisions in regard to the tenure and which would fall within the ambit of the opening words of Article 310.

(9) Observations of the Supreme Court in State of Uttar Pradesh and others v. Babu Ram Upadhya : 1961CriLJ773 (2) are instructive on this aspect. On page 758 of the report, the Court observed that under Article 309 the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and under Article 310 every such person holds office during the pleasure of the President or the Governor as the case may be and because the terms and conditions of service in Article 309 in their comprehensive sense included the tenure of the civil servant also, thereforee, the 'tenure at pleasure' was also one of the conditions of service. Subba Rao J., proceeding further said;

'BUTArt. 309 opens out with a restrictive clause, namely, 'Subject to the provisions of this Constitution' and if there is no restrictive clause in Art. 310 there cannot be any difficulty in holding that Art. 309 is subject to the provisions of Art. 310; with the result that the power of the Legislature to lay down the conditions of service of persons appointed to public services would be subject to 'the tenure at pleasure' under Art. 310. In that event, any law made by the Legislature could not affect the overriding power of the President or the Governor, as the case may be, in putting an end to the tenure at their pleasure. Would the opening words of the clause in Art. 310, namely, 'Except as expressly provided by this Constitution', make any difference in the matter of interpretation? It would be noticed that the phraseology of the said clause in Art. 310 is different from that in Art. 309. If there is a specific provision in some part of the Constitution giving to a Government servant a tenure different from that provided for in Art. 310, that Government servant is excluded from the operation of Art. 310. The said words refer, inter alia, to Arts. 124, 148, 218 and 324 which provide that the Judges of the Supreme Court, the Auditor General, the Judges of the High Courts and the Chief Election Commissioner shall not be removed from their offices except in the manner laid down in those Articles. If the provisions of the Constitution specially prescribing different tenures were excluded, from Art. 310, the purpose of that clause would be exhausted and thereafter the Article would be free from any other restrictive operation.'

SUMMINGup, he said:

'ITfollows that while Art. 310 provides for a tenure at pleasure of the President or the Governor, Art. 309 enables the Legislature or the executive, as the case may be, to make any law or rule in regard, inter alia, to conditions of service without impinging upon the overriding power recognised under Art. 310.'

(10) In Moti Ram Deka V. General Manager, North East Frontiar Railway and another : (1964)IILLJ467SC (3) also the Supreme Court expressed the same view. While dealing with the nature of the pleasure of the President or the Governor, provided for in Art. 310(1) on page 606 of the report, it was said:

'THEpleasure of the President or the Governor mentioned in Art. 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 Art. 310, and so Art. 309 cannot impair or affect the pleasure of the President or the Governor therein specified. There is thus no doubt that Article 309 has to be read subject to Arts. 310 and 311 and Art. 310 has to be read subject to Art. 311'.

(11) It is, thereforee, clear that the Rules Central Civil services (Classification, Control and Appeal) Rules, 1965 relied upon by the petitioner, though framed under Article 309, do not impinge upon or debar the President from exercising his 'pleasure', provided for in Article 310. This 'pleasure', however, can be exercised by the President and President himself as held in BK. Sardari Lal v. Union of India and others : (1971)ILLJ315SC (4) and cannot be delegated to any one else.

(12) The learned counsel for the petitioner referred to the full Bench decsion in Sham Lal v. Director, Military Farms, Army Headquarters New Delhi and others (5) where it was held that non-compliance with service rules framed under Art. 309 in case of a civilian in defense services would be justiciable in spite of the doctrine of the President's pleasure under Article 310. This was a case of compulsory retirement under the Rules and not where the President exercised his 'pleasure' under Article 310(1).

(13) The learned counsel next referred to Kapoor Singh Harnam Singh v. Union of India and others : (1960)IILLJ536MP , (6). Here also, the position was the same and the question before us was not at all mooted in that case. The appellant was dismissed after inquiry.

(14) Learned counsel then contended that on December .21, 1971, the petitioner was suspended under the Rules and that the Rules having, thus, been invoked, the services of the petitioner could have been terminated only in accordance with the Rules and resort to clause (1) of Article 310 of the Constitution of India in the circumstances for the termination of the services of the petitioner was illegal. This submission has no merit. Sub-rule (1) of Rule 10 of the Rules empowers the authority concerned to place a Government servant under suspension in circumstances envisaged in the said sub-rule and sub rule (2) of the said Rules provides that 'a Government servant shall be deemed to have been placed under suspension by an order of appointing authority' with effect from the date of his detention, if he was detained in custody whether on criminal charge or otherwise for a period exceeding 48 hours. The communication to the petitioner by Exhibit P/4 of the information that in terms of sub-rule

(2)of the said Rules, he would be deemed to have been suspended until further orders, even if taken to be an invocation of the said Rule, does not operate to divest the President of the power under clause (1) of Article 310 of the Constitution.

(15) We are, thereforee, of the view that the Rules do not in any manner override the absolute pleasure of the President in cases where Article 311 is not applicable and as the impugned order terminating the services of the petitioner was admittedly passed by the President himself the petitioner has no case in support of the relief prayed.

(16) We, thereforee, find no merit in this petition and the same is dismissed with costs. Counsel fee Rs. 250.00.


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