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V.K. Nambudiri Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectService
CourtKerala High Court
Decided On
Case NumberO.S. No. 9 of 1959
Judge
Reported inAIR1961Ker155; (1961)ILLJ68Ker
ActsConstitution of India - Articles 14, 16 and 310; Pensions Act, 1871 - Sections 4
AppellantV.K. Nambudiri
RespondentUnion of India (Uoi)
Appellant Advocate T.K. Narayana Pillai and; D. Narayanan Potti, Advs.
Respondent Advocate C.M. Kuruvilla, Govt. Pleader
DispositionSuit dismissed
Cases ReferredShaukat Husain Beg v. State of Uttar Pradesh
Excerpt:
.....of travancore - petitioner was terminated on account of his not being enlisted and selected in indian army after reorganisation of states - absoluteness of provision of article 310 for tenure of service at pleasure of president leads to two propositions - firstly employment of member of defence services can be terminated without assigning any reason - secondly even in case of dismissal no action for damages or compensation can be entertained in courts - under article 14 equality of treatment can only be in equality of circumstances and conditions - non-enlistment of petitioner in indian army did not amount to arbitrary discrimination offending article 14 - held, suit failed. - - if this contention is accepted, the suit has to fail in limine; kuruvilla, who appeared for the union..........a reorganisation scheme, screened the officers of the travancore-cochin state forces by the indian army services selection board during which process the plaintiff was graded as 'unacceptable' to the indian army. on the strength of such a grading, the army headquarters issued an order directing the release of the plaintiff from the army.the plaintiff thereupon moved o. p. no. 67 of 1950 before the travancore-cochin high court under article 226 of the constitution for the issue of a writ of mandamus directing the commandant of the travancore-cochin state forces not to release the plaintiff from his rank in the army. during the pendency of this petition the release order was cancelled by the authorities and the plaintiff was reinstated. on 5-3-1951, however, the 1st defendant issued a.....
Judgment:

M. Madhavan Nair, J.

1. This is a suit against the Union of India and the State of Travancore-Cochin instituted by an Ex-Military Officer for 'damage's and compensation for the wrongful termination of his employment' to the extent of Rs. 50,000/- and other reliefs. The main defence in the case is that the plaintiff, as a member of the Armed Forces, held office during the pleasure of the President by virtue of Article 310 of the Constitution and as such is not entitled to maintain a suit based on a wrongful termination of his employment. If this contention is accepted, the suit has to fail in limine; and I am of the view that the defence contention has to be accented.

2. The case of the plaintiff is as follows:--The plaintiff was a permanent employee of the rank of a Major in the State Forces of the erstwhile Travancore State when that State was integrated with the adjoining State of Cochin to form the State of Travancore-Cochin mentioned in Part B of the First Schedule to the Constitution. With the integration of the TravanCore-Cochin State he became a Major in the Travancore-Cochin State Forces; and on coming into force of the Constitution on 26th January, 1950 he became an officer of the Indian Army by virtue of Article 259 (2) of the Constitution.

Thereafter he was entitled to all the privileges of a Major in the Indian Army; but, the 1st defendant, under colour of a reorganisation scheme, screened the officers of the Travancore-Cochin State Forces by the Indian Army Services Selection Board during which process the plaintiff was graded as 'unacceptable' to the Indian Army. On the strength of such a grading, the Army Headquarters issued an order directing the release of the plaintiff from the Army.

The plaintiff thereupon moved O. P. No. 67 of 1950 before the TravanCore-Cochin High Court under Article 226 of the Constitution for the issue of a writ of mandamus directing the Commandant of the Travancore-Cochin State Forces not to release the plaintiff from his rank in the Army. During the pendency of this petition the release order was cancelled by the authorities and the plaintiff was reinstated. On 5-3-1951, however, the 1st defendant issued a communication to the Commander-in-Chief of the Indian Army, which stated:-

'I am directed to convey the sanction of the President to the relinquishment of Commissions and termination of services of the following officers of the Travancore-Cochin State Forces with effect from the dates they are relieved of military duty'. The plaintiff being one of the officers named there in, a revised order was served on the plaintiff granting him one year's leave from 31-3-1951 and releasing him from the Army on 31-3-1952. According to the plaintiff this order is illegal and amounts to a wrongful termination of his employment for which he is entitled to damages and compensation, which though on a proper estimate would be far in excess of Rs. 50,000, the plaintiff limits only to the said sum. Later on, he amended the plaint to include an alternative prayer for declaration of his right to a 'pension of Rs. 400/- per mensem under the Indian Army Rules as amended by the revised Indian Pay Code from the date of his release' instead of the pension of Rs. 103-6-0 actually granted to him.

3. The 1st defendant the Union of India, filed a written statement contending that the plaintiff had no cause of action in this suit based on a wrongful termination of his employment, that ho was only an officer of the TravanCore-Cochin State Forces, that be never became an officer of the Indian Army as such and that he could not claim the pay or pension or other privileges accorded to the officers of the Indian Army.

The 2nd defendant, the State of Travancore-Cochin (which is now represented by the State of Kerala) filed a separate written statement contending that the plaintiff has no cause of action as alleged in this suit, particularly against the 2nd, defendant.

4. Sri C.M. Kuruvilla, who appeared for the Union of India as well as the State of Kerala, contended vehemently that the- claim in the suit, being based on a wrongful termination of the plaintiffs service in the Defence Services, does not amount to a cognizable cause of action and as such the suit must be dismissed in limine. This contention is obviously based on Article 310 of the Constitution of India.

5. For purposes of my decision on this contention, I am assuming, without deciding, that the plaintiff had, by virtue of Article. 259(2} of the Constitution, become a member of the Indian Army on the commencement of the Constitution on 26t!i January 1950, though the learned Government Pleader contended on behalf of the Union of India against the same vehemently and relied on certain observations of the TravanCore-Cochin High Court in its judgment on the writ petition filed by the plaintiff. I may note here that the said Judgment is reported in Vishnu Krishnan Namboodiri v. K.N. Kripal, 1951 Ker LT 385 : (AIR 1952 Trav-Co 7) and the relevant passage therein reads thus;-

'It is clear from sub-clause (e) of Clause (xviii) (of Section 3 of the Army Act, 1950) that an Officer of the Land Forces in any part B State was not recognised as a regular Officer of the Indian Army for all purposes and for all time. The expression 'for the time being subject to the Act indicates that the subsequent absorption of such an Office into the regular Army was contemplated by the Act-He would attain the full status as an Officer of the Indan Army only on getting a commission from the President as contemplated by Section 10 of the Act. That section lays down that the President may grant to such person as he thinks fit a Commission as an officer Or as a Junior Commissioned Officer or appoint any person as a Warrant Officer of the Regular Army. Admittedly these petitioners have not yet been granted any such Commission by the President, as Officers of the Regular Army. Under section 10 the President will grant a Commission only to such persons as the President thinks fit. This necessarily means that a process of selection and grading by Competent authorities has to take place for ascertaining those who are fit for the grant of Commission as Officers under the regular Indian Army ........... The Officers of the Travancore-Cochin State Forces were accordingly made to appear before the Indian Army Services Selection Board.'

Admittedly, on screening, the plaintiff was graded as 'unacceptable', and therefore no commission was given to him by the President. But, as I have already stated, that question need not detain me long for the adjudication of the preliminary issue raised by the learned counsel for the Union of India.

6 Article 310 of the Constitution provides:-'Except as expressly provided by this Constitution every person who is a member of the defence service ...... or holds any post connected with the defence ...... holds office during the pleasure of the President ..,......'

The argument is that the plaintiff, as a member of the Defence Services, can have no right of action against the Union of India, even if his service was terminated arbitrarily and without any reason whatever, since the Constitution in terms provided that the Servicemen held their post in the dcfence services 'during the pleasure of the President.'

7. Article 310 of our Constitution embodies a rule of constitutional doctrine pertaining to the tenure of our Services. It adopts and incorporates the constitutional theory established in the English Common Law (see Shenton v. Smith, 1895 AC 229) and also recognised in the American Constitution (see Myers v. United States, (1926) 272 US 52: 71 Law Ed 160) that the tenure of services shall be at the pleasure of the Executive Head of the State. As observed by Badkas, J., in Jagdish v. Accountant General, AIR 1958 Bom 283.

'The Constitution in its wisdom has reposed confidence in and vested powers in relation to services on the President who is the highest dignitory of our State and in whom the executive Government vests- The Constitution trusts that the President will always act with full justice to all and in the interests of the State of which he is a care-taker. The integrity and responibility to carry on the Executive Government are the only checks by which the Constitution is satisfied.'

8. The plaintiff has a case that the exercise of pleasure by the President in giving sanction for the termination of his employment was not bona fide in that he has acted on the advice of the Selection Board. When the Constitution has confided a matter to the untrammelled pleasure of the President, nobody can be allowed to challenge the genuineness, bona fides or veracity of the exercise of such pleasure by the President on any pretext whatever; and Court cannot go behind the expression of pleasure by the President.

If the exercise of the pleasure by the President is made a justiciable issue, the satisfaction of the President as to the necessity for the exercise of his pleasure in the particular manner shall have to be proved as an objective fact to the conviction of the Court. It may be that what may satisfy the President may not satisfy the Court; or, what may be found expedient or necessary by the President may not be held by the Court. It would then be a substitution of the pleasure of the Court in the place of the pleasure of the President.

If therefore the grounds on which the President came to exercise his pleasure were to be demanded by a Court at the instance of the affected party, such Court would virtually be attempting to deprive the President of the confidence which the Constitution, in its supreme wisdom, has reposed in the President. The plea of want of bona fides in the exercise of pleasure by the President cannot therefore be heard by any court functioning under the Constitution.

9. Our Constitution treats the Defence Services as a separate unit distinct from the ordinary organs of the Government to which the Civil Services belong and appertain. It has made elaborate provisions and regulations concerning the Executive, the Legislature and the Judiciary of the country, but has left the Defence Services under curtain. The only references that we find in the Constitution about the Defence Services are in Article 53(2) where the President is constituted the Supreme Command of the Defence Forces, and in Article 310 where the tenure of office of the members of the Defence Services is limited to the pleasure of the President.

Article 259 which provided for an amalgamation of the Forces maintained by the former Native States in India with the Armed Forces of India as such was only a transitory provision and was abrogated by the VIIth Amendment. There is no other provision in the Constitution referring to the defence personnel, much less to the conditions of their service.

So the expression 'except as expressly provided in this Constitution' at the beginning of Article 310, which apparently restricts or limits the scope of the rule of 'tenure of service during the pleasure of the President, has really no significance with regard to the defence personnel. Such exceptions are found in regard to the tenure of certain high Officers of the Civil Service in Articles 124, 148, 218, 316 and 824 and in regard to the imposition of punishment on any member of the Civil Services in Article 311; but there is no provision making any exception to 'the rule of pleasure' in the case of any member of the Defence' Services in the Constitution.

It cannot be a mere omission; but can only be a matter of policy Calculated to maintain the high degree of discipline expected of the Defence Services. The absence of any restraint on the exercise of pleasure of the President affecting the tenure of service of the members of the Defence Services, as lias been conceded in favour of members of the Civil Services in Article 311, clearly indicates that the exercise of powers by the President in the termination of services of the Army personnel should be absolutely unfettered.

AS has been pointed out by Lord Goddard, C. J., in regard to police personnel in R. v. Metropolitan Police Commissioner; Ex parte, Parker, (1953) 2 All ER 717 and in regard to the Fire Brigade in Ex parte, Fry, (1954)2 All ER 118 interference by Courts in the exercise of powers would hamper the free exercise thereof which is a matter of necessity in public interests. The public interests require that in the case of Military Servants the pleasure of the- president, who is the Supreme Command of the Defence Forces, should not be made the subject-matter of litigations. To make it justiciable is to take the life out of it.

10. The absoluteness of the provision in Article 310 of the Constitution for tenure of service at the pleasure of the President leads naturally to two propositions: (1) The employment of a member of the Defence Services can be terminated without as- signing any reason; and (2) Even in the case of wrongful dismissal, no action for damages or compensation can be entertained in Courts,

11. In 1895 AC 229 it was held that the office of a Government servant of Western Australia being held at pleasure of the Crown could be terminated at will and no action for damages would lie for wrongful dismissal. In Denning v. Secretary of State for India in Council (1920) 37 Trav LR 138 the plaintiff was employed by the Secretary of State for India on a contract for a period of 5 years. His services were terminated prematurely for no misconduct on his part. Even so, it was held that the plaintiff could not maintain an action for damages. In Halbury's Laws of England, Vol. VII, page 340, Para 732, it is observed, as a general theory of Constitutional law:-

'Except where it is otherwise provided by statute, all public officers and servants of the Crown hold their appointments at the pleasure of the Crown, and all, in general, are subject to dismissal at any time without cause assigned; nor will an action for wrongful dismissal be entertained even though a special contract be proved'. If the tenure of service is at the pleasure of the President and such pleasure be above the cognizance of Courts, it follows that the servant affected cannot maintain an action for damages and compensation for the termination of his service, however wrongful or biased he may think it to be.

12. It is pertinent to note in this connection that Article 310(2) of the Constitution, which provides for payment of compensation for premature termination of service for no fault of the employee, excludes from its purview all personnel of the Defence Services. The opening words of Article 310(2) indicate that what is provided therein is an exception to the proposition that persons holding posts under the Union hold office during the pleasure of the President.

If in cases where an expert, who is not otherwise a servant of the Union, is appointed under a special contract for a term of years and is subsequently required to vacate his office for no fault of his, it requires a special provision in the contract entered with the consent of the President to entitle him to compensation for premature discharge from office, the inference can only be absolute that, in other cases not expressly excepted in Article 310(2) no claim for compensation based on a premature termination of employment will lie at all.

13. It follows from the above discussion that the suit, so far as it relates to the claim for damages and compensation for wrongful termination of plaintiff's service, must necessarily fail and has to be dismissed in limine.

14. It is contended on behalf of the plaintiff that he is entitled to a fundamental right, under Articls 14 and 16 of the Constitution, for equality of treatment with other officers of the Indian Army-of the same rank as Majors with him. The complaint is that none of those officers had been subjected to a selective test after they had been once commissioned as Majors in the Army and therefore the subjection of the plaintiff to a screening by the Selection Board after he had been a permanent officer of the rank of a Major in the State Forces amounted to an arbitrary discrimination and a denial of equal Opportunity of employment guaranteed by the above-said Articles. This contention is not acceptable to me.

15. Absolute equality for everybody is an impossibility and is not what is provided for in Article 14. Equality in treatment Can only be when there is equality of circumstances and Conditions. It is now well settled that Article 14 does not forbid reasonable classification. All that are required to justify classification and consequent discrimination are (1) the classification must be founded on an intelligible differentia which distinguishes persons who are grouped together from the others who are left out of the group, and (2) that differentia must have a rational relation to the object sought to be achieved by the proceedings. (See Moti Das v. S. P. Sahi, AIR 1959 SC 942 at p. 947).

Admittedly, the plaintiff's selection to the Travancore State Forces was not by the Indian Army Services Selection Board, but by a totally different authority then functioning in the erstwhile State of Travancore. There is absolutely no knowing, much less a guarantee, that the standards set by the authorities of the Travancore Military were on a par with those maintained by the Indian Army Services Selection Board in enlisting personnel for the Indian Army,

Their standards of selection were what they have themselves adopted. As such the screening and grading of the officers of the Travancore-Cochin State Forces by the Indian Army Services Selection Board for purposes of their enlistment in the Indian Army cannot be characterised as an arbitrary discrimination offending Article 14 of the Constitution.

16. As regards Article 16 of the Constitution, equal opportunity for employment can be insisted only among persons who stand equality in the qualifications set for the service. Authorities entrusted, with the recruitment of services may set qualifications of mental excellence, moral integrity, physical fitness, sense of discipline, quickness of action, loyalty to the State, technical attainments etc. etc., as necessary for a particular service. Persons who do not satisfy the qualifications in full cannot claim-equal opportunity of employment with those who do satisfy them. If the plaintiff, on test, was not found to have the same fitness as officers who have been enlisted in the Indian Army, it follows that the plaintiff cannot claim the protection of Article 16.

17. The constitutionality of the procedure adopted by the Indian Army Services Selection. Board was once challenged by this plaintiff in the writ proceedings instituted by him before the Tra-vanCore-Cochin High Court. It was held therein:-

'Discrimination is between those 'acceptable' and those 'unacceptable', is inevitable on any process of selection and grading and there can be nothing wrong in such a discrimination. Admittedly all officers of the Travancore-Cochin State Forces were subjected to the screening by the Selection Board and those who were graded as 'acceptable' were given commission as Officers on the Reguter Indian Army. Thus as between Officers similarly situated, there has been no discrimination in the matter of being subjected to 'screening by the Selection Board. It follows therefore that the fundamental right guaranteed by Article 16 of the Constitution has not in any way been violated or infringed by the proceedings which culminated in the sanction (of the President) referred to above'. I am in respectful agreement with the above observations.

18. In view of my findings in paragraphs 15 and 16 supra, the question whether Articles 14 and 18 of the Constitution control Article 310 thereof does not properly arise in this case.

19. Coming to the alternative prayer for a 'proper pension' at a higher rate than has been granted by the Union of India, the suit is equally unsustainable. The very conception of a pension is that it is a bounty on the part of the State for past services rendered to the State. It is not a matter of legal right. No person can claim as of right a particular sum as pension due to him, much less can such a claim be an actionable one. Section 4 of the Pensions Act, 23 of 1871 bars the Civil Courts from taking cognizance of a suit relating to pension. It enacts:-

'Except as hereinafter provided, no Civil Court shall entertain any suit relating to any pension .... whatever may have been the consideration for any such pension........'.

Shaukat Husain Beg v. State of Uttar Pradesh, AIR 1959 All 769 observes:-

'A person Cannot claim pension as of right and in any case the right to recover pension is not actionable'.

Further as found in 1951 Ker LT 385 : (AIR 1952 Trav-Co 7), the plaintiff has not become a member of the regular Indian Army and as such he is not entitled to claim the emoluments or pension ac-corded to the members of that Army. The claim for enhanced pension is therefore misconceived.

20. AS against the 2nd defendant, the State of Kerala, no cause of action has been made out before me in this suit, I find that the plaintiff has no cause of action against the 2nd defendant, the State of Kerala.

21. In the result, the suit fails and it is dismissed with Costs.


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