Kanta Bhatnagar, J.
1. Petitioner, Ram Singh a Shutar Sawar, appointed in the year 1955, was removed from services by the Tehsildar, Jodhpur, by the order Ex P.13 dated 5.8.75. The petitioner, dissatisfied by that order, prepared an appeal before the S.D.M., Jodhpur. The appeal was rejected by the order dated 21.2.75. Thereafter he filed a review application before the Collector, Jodbpur, which was rejected as not being entertainable. The petitioner had now invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India, impugning the orders Ex. P.13 and P.15. The avernments are that he was appointed vide Ex. 1 on 21.2.1955 by the Collector, Jodhpur, as Shutar Sawar (Camel Sawar) A criminal case for identifying a wrong person at the instance of another employee of the department in connection with a Taccavi loan of Rs. 250/- was instituted against him. Because of that case he was suspended vide order Ex. 2 on 15th June, 1965. He was acquitted in that case but was not reinstated because another criminal case under Section 5 of the Opium Act had been instituted against him. In that case he was convicted and contenced by the trial court. The appellate court affirmed the judgment of the trial court. When; the matter came in revision before this court, the petition was partly allowed and he was given benefit under the Probation of Offenders Act by the order dated 7.7.72, Ex. P.8. He made a request for his reinstatement on the ground that he had been given benefit under the Probation of Offenders Act and as such there was no impedinent in his reinstatement. The petitioner filed the application Ex. P. 10 before the Tehsildar, Jodhpur, for his reinstatement. The Tehsildar forwarded the application to the Collector and the Collector in his turn referred the matter to the State Government. The reply sent by the Government to the Collector is Ex. P.11. It is mentioned therein that the reinstatement or removal of the petitioner would depend upon the discretion of the disciplinary authority. The Tehsildar, Jodhpur, issued notice Ex. P.12 under Article 311(2) of the Constitution of India to the petitioner. The petitioner filed the reply to that notice which is Ex. P.20. The Tehsildar, Jodhpur, by the impugned order Ex. P.13, ordered the removal of the petitioner from service. The petitioner has assailed that order as well as the appellate order on a number of grounds.
2. At that time of the arguments, the learned Counsel for the petitioner has mainly stressed the ground that the order of removal passed by the Tehsildar was invalid as being in contravention to the provisions of Article 311(1) of the Constitution of India. According to the learned Counsel for the petitioner was appointed by Collector, Jodhpur, an authority definitely higher to the Tehsildar and therefore, the order of removal passed by the Tehsildar was erroneous.
3. Mr Udawat, learned Public Prosecutor, controverted these contentions on the ground that the petitioner could not publish by any document that he was appointed by the Collector and not by the Tehsildar. According to him a Tehsildar is empowered to appoint a Siutar Sawar and therefore, there could not have been any question of a higher authority like Collector making appointment for the post of a class IV employee.
4. The first point for consideration in the matter, therefore, would be as to who had appointed the petitioner. The petitioner has come with a specific case that he was appointed by the Collector. In this concern reliance has been placed on Ex. 1 dated 3.2.55. This is the information sent by the Tehsildar, Shergarh to the Collector, Jodhpur, regarding the joining of service of the petitioner and two others viz. Khaju Khan and Bhanwar Singh This letter has been addressed to the Collector, Jodhpur, and with regard to the reference, it states as 'Your No. Esst. A/811 dt. 21.1.55 & 1039 Dt. 29.1.53'. The subject mentioned is Appointment of Camel Sawar in Jagir'.
5. According to Mr. Munshi, learned Counsel for the petitioner, the petitioner was appointed on 21.1.55 by the Collector and as he had joined duty on 2.2 55, information was sent by the Tehsildar on 3.2.55. This document of course does not speak that the petitioner was appointed on 21.1.55 by the Collector but shows that the Tehsildar had sent the information to the Collector about the petitioner joining duty on 2.2.55 and this information was sent in reference to the orders of the Collector mentioned above. The order No. Esst. A/811 Dt. 21.1.55 and 1039 Dt. 29.1.55 may be taken to be some appointment order of the Collector's office. The petitioner has expressed his inability to produce his appointment order. In the reply filed by the non-petitioners there is no specific denial of the averment that the petitioner was appointed by the Collector. All that has been attempted to show was that the Tehsildar was empowered to appoint Class IV Servants and so it must be presumed that the appointment was made by the Tehsildar. The state or the concerned Department is the custodian of the orders of this type. The non-petitioners in my opinion, should not have evaded the point by giving such a vague reply. It was expected of them to produce the appointment order by whom so ever it might have been made. It is pertinent to note that along with the rejoinder the petitioner has filed Ex.P.19 dated 6.8.76 the certified copy of the letter written by the S.O.M., Jodhpur, dated 1.1.76 in connection with the application of the petitioner for supplying him the copies of review/revision petition filed by him and his appointment order. The office report shows that the copy of the first document was submitted for the signatures of the S.D.O. while for the second i.e. the appointment order, the report was, that, despite searching the whole of the record it was not traceable and therefore, the copy cannot be supplied to the petitioner. At the bottom there is the endorsement appointment order ^^miyC/k ugh gS** bearing the signature of the S.D.O, If the Department could neither trace out the appointment order and supply a copy to the petitioner at his request nor could produce it along with the reply to the writ petition, the petitioner cannot be blamed for concealing his appointment order. Under such circumstances the petitioner can legitimately take help from Ex. 1 to substantiate his case that his appointment was by the Collector and therefore, the Tehsildar in reference to that order intimated the Collector about the date of the petitioner joining service. The contention of the learned Public Prosecutor that, why the Collector would have made the appointment when Tehsildar was entitled to appoint, does not hold good for two reasons. Firstly, the appointment relates to the year 1955 and material has been placed before the court to show that at that time Tehsildar was entitled to make appointment of Class IV Servants. Secondly, there is Ex. P.21 dated 7-3-55 the order of appointment passed by the Collector appointing Madho Singh s/o Rawat Singh as Shutar Sawar. It is important to observe that the appointment of the petitioner was in the month of February, 1955, while that of Madho Singh was only in the next month i.e. March 1955. Thus, it is clear that Collector, Jodhpur, was appointing Camel Sawars during that period. This being the position all that can be said is that petitioners case about his appointment being made by the Collector, Jodhpur, stands substantiated by documents.
6. The next point emerging for determination is whether the petitioner having been appointed by the Collector, could be removed from service by the Tehsildar.
7. Mr. Munshi has referred to a number of authorities on the point that the intention of Article 311(1) of the Constitution of India is that a civil servant cannot be removed from service by an authority subordinate to that appointing him.
8. Mr. Udawat on the other hand has contended that whatever might be the position in the year 1955 Tehsildar was entitled to appoint Class IV Servants in the year 1974 and therefore, he falls within the definition of Disciplinary Authority of Class IV Servants and as such, the order Ex. P-13 docs not violate the provisions of Article 311(1) of the Constitution.
9. Mr. Udawat, in support of his contention, has placed reliance on the observations made in the case of L.N. Savita v. Union of India 1980 RLW 1. The question for consideration before his lordship was, whether the Divisional Personal Officer was same in rank with the Divisional Officer to whom the powers were delegated by the General Manager at the time of concerned appointment. A booklet produced on behalf of the Railway Authorities showing the delegation of powers of making initial appointment to non-gazetted post to the Divisional Officer, was looked into by His Lordship At the agreement of the learned Counsel for both the sides his lordship was pleased to hold that the Divisional Personnel Officer, in the same as Divisional Officer. In that view of the matter the order of compulsory retirement of the concerned employee appointed by the Divisional Officer was considered to be valid. In these circumstances, his lordship was also pleased to observe that is required is that the person who passed the impugned order must be competent at the time the impugned order was passed to appoint the petitioner. In order to properly explain this position it would be profitable to refer to certain authorities making it clear that it is the factum of appointment of Govt. employee which is to be taken into consideration and the power of an officer subordinate in rank to the appointing officer will not in any way affect the matter.
10. In the case of Sajjnsingh v. The State of Rajasthan 1959 RLW 287 the Division Bench had the occasion to the interpret the provisions of Article 311(1) of the Constitution. In that case petitioner was appointed by the Inspector General of Police of former Jaipur State on probation. In the year 1955 he was confirmed by the D.I.G., Rajasthan, later on. On integration, I.G. confirmed the petitioner. In that view of the matter it was held that it was the I.G. Police and not the D.I.G. who was the appointing authority of the petitioner. In that view of the matter their lordships were pleased to set aside the order of the dismissal of the employee passed by the D.I.G., Jaipur, as the same being unconstitutional.
11. The question of removal from service by an authority subordinate to that appointing a civil servant came for consideration in the case of Krishna Kumar v. The Divisional Assistant Electrical Engineer, Central Railway and Ors. : (1980)ILLJ209SC . The employee in the case was appointed as a Lighting Inspector under an order issued by the Chief Electrical Engineer and was removed from service under an order passed by the Divisional Assistant Electrical Engineer, Central Railway, Nagpur. Their lordships were pleased to observe as under:
Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Article 311(1) becomes available to the person holding, for example, a civil post under the Union Government that he shall net be removed or dismissed by an authority subordinate to that which appointed him. The subsequent authorisation made in favour of respondent I in regard to making appointments to the post held by the appellant cannot confer upon respondent 1 the power to remove him.
12.In the case of The State of Rajasthan v. Ashraf Khan 1971 WLN (Part I) 208 there arose the question of the authority of sanction for the prosecution of a public servant under the Prevention of Corruption Act. The respondent was appointed under the orders of Raj Pramukh and therefore, it was held that he could not hive been dismissed from service, by the Dy. Secretary, Appointments Department. For that reason the sanction given by the Dy. Secretary Appointments Department was held to be invalid. The important observations by their Lordships in the case were as under:
Where an authority, higher than the one entitled under the statutory rules to order an appointment, in fact orders a valid appointment, it is the factum of that appointment that controls the scope of the guarantee conferred by Article 311(1) of the Constitution, and if such civil servant is dismissed or removed from service by an authority, no doubt competent under the rules to order the appointment and also to order dismissal, which, however, is lower in rank than the authority which in fact ordered the appointment, such an order would contravene the provisions of Article 311(1) of the Constitution.
13. In Article 311(1) of the Constitution the term used is '....' by an authority subordinate to that by which he was appointed.' It cannot be stretched to the extent that it is meant for the person entitled to appoint. In other words, it is the factum of time which is considered.
14. Article 311(1), so far as it relates to the appointment of a Govt. servant should be read with the provisions of the rules controlling the service to which the particular employee belongs. The petitioner is governed by the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. The term of 'appointing authority' has been defined in Rule 2(a) as under:
(i) The authority empowered to make appointments to the Set vice of which the Government Servant is for the time being a member or to the grade of the Service in which the Government Servant is for the time being included, or
(ii) The authority empowered to make appointments to the post which the Government Servant for the time being holds, or
(iii) The authority which appointed the Government Servant to such service, grade or post, as the case may be, or
(iv) Where the Government Servant, having been a permanent member of any other service or having substantively held, any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that Service or to any grade in that Service or to that post, which ever authority is the highest authority.
15. Thus, it is clear that the authority or the person actually passing the appointment order is the appointing authority for the purpose enumarated in Article 311(1) of the Constitution.
16. In this concern reference may be made to the decision in the case of Dharam Dev Mehta v. rite Union of India and Ors. 1980 ALR 414. The case related to the employee governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The definition of the 'appointing authority' in all the four clauses of that Rule 2(a) was exactly in the same language, in which the definition of 'appointing authority' is under Rule 2(a) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 is. The appellant in that case was appointed by the Comptroller and Auditor General as Assistant Audit Officer. The impugned order of his retirement was issued by the Director of Commercial Audit. Their lordships were pleased to hold that the order of retirement to be legal must have been issued by the Comptroller and Auditor General, the officer who appointed the appellant. In view of the facts of that case their lordships were pleased to hold that 'there is no doubt that among the four clauses of authorities listed under Rule 2(a), the one following under Sub-rule (iii) viz., Comptroller and Audit General (in the present case) is the highest.'
17. From the above discussion, I am inclined to hold that the petitioner has succeeded in establishing that his appointment was made by the Collector, Jodnpur. The impugned orders Ex. P, 13 dated 5.6.75 passed by Tehsildar, an officer definitely subordinate in rank to the Collector, is in violation of the provisions of Article 31(1) of the Constitution and deserves to be quashed.
18. For the reasons stated above, the writ petiJon is allowed and the orders Ex. P. 13 dated 5.8.75 passed by respondent No. 4 and Ex. P.15 dated 21.2.75 the appellate order passed by respondent No. 3 are set aside as being unconstitutional.
19. In view of the facts and circumstances of the case there will be no order as to cost.