MOTI RAM DEKA ETC. versus GENERAL MANAGER, N.E.F. RAILWAYS, MALIGAON, PANDU, ETC.

SHAH J.-Except as expressly provided by the Constitution, every member of the defence services or of a civil service of the Union or an all-India service holds office during the pleasure of the President and every member of a civil service of a State holds office during the pleasure of the Governor of the State: Art. 310(1). This is the normal tenure of office of persons serving the Union or the State. The doctrine of holding office at pleasure applies even to a person with special qualifications employed under a contract, with the reservation that compensation may be paid to such person if before the expiry of the agreed period the office is abolished, or for reasons not connected with misconduct on his part, he is required to vacate that post: Art. 310(2). The power to terminate at pleasure vested by the Constitution in the President or the Governor, as the case may be, is not liable to be restricted by any enactment of the Parliament or the State Legislature: it may be exercised only in the manner prescribed by the Constitution and being outside the scope of Arts. 53 and 154 of the Constitution cannot be delegated : State of Uttar Pradesh v. Babu Ram Upadhya< It is open to the Parliament and the State Legislatures to enact Acts · subject to the provisions of the Constitution to regulate recruitment and conditions of services and posts in connection with the affairs of the Union or a State (Art. 309), and until such legislation is enacted,-it may be observed that the Union Parliament has not enacted any general legislation governing public servants employed by the Union-the President or the Governor or such person as may be directed in that behalf may make rules regulating the recruitment and conditions of service of persons appointed to such services and posts, and the rules so made by the President or the Governor shall have effect, subject to the provisions of any such Acts. The power of the President or the Governor under Art. 310 (which is wholly independent of the power conferred by the rules or legislation under Art. 309), and the power conferred by legislation enacted or rules made or continued by virtue of Art. 309 are subject to certain restrictions contained in Arts. 311 & 314. Article 314 grants certain special protections to mem hers appointed by the Secretary of State or the Secretary of State in Council to a civil service of the Crown in India and who continue on and after the commencement of the Constitution to serve under the Government of India or a State. Article 311 provides, subject to the proviso to cl. (2), two safeguards to all public servants who are members of the civil service of the Union or an all-India service or a civil service of a State who hold civil posts under the Union. or the States. These safeguards are- "(!) that such members of the service shall not be .dismissed or removed by an authority subordinate to that by which he was appoin-

pp. 771–772

ted; and (2) that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." The proviso to cl. (2) of Art. 311 excludes three specific classes of cases from the protection of the second guarantee.

pp. 772–773

Guarantees under Art. 311 are, except to the ext~nt specifically provided, absolu.te ~nd are not s.ubject to the. exercise of power, legislative o.r executtfve.h Accordmgly the plebasure of. thde . President or o t e 0 overnor cannot e exercise m a manner inconsistent with cl. (2) of Art. 311. Article 310 must therefore be read subject to Art. 311(2), and· the rules made or legislation enacted under Art. 309 must also be read subject to Art. 311. It must be emphasized that the guarantees protect all servants, whether appointed to substantive posts, or employed temporarily or on probation, or for limited duration under contracts, but they do not encompass all penalties or terminations of employment. The guarantee under cl. (1) is against dismissal or removal by an authority subordinate to that by which the public servant was appointed, and under cl. (2) against dismissal, removal or reduction in rank without being afforded a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The guarantee under cl. (2) does not affect the investment of power to dismiss, remove or reduce in rank a member of the civil service; it merely places restrictions upon the exercise of the power. Temporary servants, servants on probation, officiating servants and even those holding posts under contracts-all have the protection of Art. 311. But the consequences of mere determination of employment in the very nature of things must vary according to the conditions or terms of employment. Mere determination of employment of temporary servants, or probationers, and of servants whose tenure is governed by contracts, will not ordinarily amount to dismissal or removal, for, dismissal or removal according to the rules implies determination as a disciplinary measure.

p. 773

The appellants in appeals Nos. 711 to 714 of 1962 are public servants employed in the Railways under the management of the Government of India and were governed by the rules made under Art. 309, and their services were terminated in purported exercise of powers under Rule 148(3). Rule 148, the validity of which is challenged by the appellants in these appeals, was originally framed in 1951 in exercise of the authority conferred by Art. 309, and was later modified so as to exclude from its operation deterruination of employment operating as dismissal or removal as a disciplinary measure. The first clause deals with a temporary railway servant who holds no lien on a permanent post under the Union. Such a person need be given no notice of termination of employment, if the termination is due to the expiry of sanction to the post, or of the officiating vacancy or is due to mental or physical incapacity, or where it amounts to removal or dismissal as a disciplinary measure. Clause (2) deals with apprentices. Clause (3) deals with· (non-pensionable) railway servants, who are substantively appointed to permanent posts. Clauses (3) & ( 4) provide:

pp. 773–774

"(3) Other (non-pensionable) railway servants- The service of other (non-pensionable) railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not however required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity:- · (a) Probationary officers and officers on probation other than those in the Medical

p. 774

Department. ............. 3 months' notice (b) Officers on probation in the Medical Depart-

p. 774

ment .......... 1 month's notice (c) Permanent Gazetted

p. 774

Officers .......... 6 months' notice ( d) Permanent Non-gazetted employees .......... 1 month's notice.

p. 774

"( In lieu of the notice prescribed in this rule, it shall be permissible on the part of the Railway Administration to terminate the service of a railway servant by paying him the pay for the period of notice."

p. 775

In this group of appeals (Nos. 711-714 of 1962) the principal question raised by the appellants is that the third clause of Rule 148 is invalid. The clause declares that the service of any railway servant who holds non-pensionable employment is liable to be terminated on notice on either side of the periods set out in the Rule, but notice terminating employment by the Railway Administration is not a condition of dismissal or removal or of retirement on attaining the age of superannuation and of termination of service due to mental or physical incapacity. The clause prescribes the mode of determination of employment of non-pensionable railway servants by notice and proceeds to state that in the specified cases no notice for termination of employment by the Railway Administration shall be necessary. It, however, does not follow that in the excepted classes of cases of the right of the Railway Administration to terminate employment is absolute or unrestricted: it is merely intended to be enacted by cl. ( 3) that notice will be necessary where on compliance with other appropriate conditions, there is retirement on attaining the age of superannuation, or determination of employment in compliance with the provisions of the Constitution, or for mental or physical incapacity.

p. 775

Clause (3) of Rule 148 is impugned by the appellants on two principal grounds:

p. 775, margin E

(1) that it is inconsistent with the protection which is guaranteed to all public servants

p. 775, margin E

by Art. 311 (2) ; and (2) that it contravenes the fundamental freedom under Art. 14 of the Constitution in that certain classes of railway servants are selected for special prejudicial treatment when no such conditions of service are applicable in any other public employment and that in any event an arbitrary power is conferred upon the authority competent in that behalf under the rules to terminate employment

pp. 775–776, margin E

without any principle to guide him. Under the first head it is urged that termination by notice of employment of non-pensionable servants ·under Rule 148(3) being 'removal from service, in the absence of rules prescribing machinery for affording

p. 776

a reasonable opportunity of showing cause against the · action proposed to be taken in regard to such employees, the Rule infringes the constitutional guarantee under Art. 311 and is void. This plea assumes that every termination of employment by notice under Rule 148(3) amounts to removal. But on the plain text of cl. (3) it is evident that the right to determine employment by notice cannot be exercised in the excepted cases and since dismissal or removal as a disciplinary measure falls within those excepted cases, the President has, by framing cl. (3) of Rule 148, clearly expressed the intention that determination of employment which amounts to dismissal or removal cannot be effected by notice. In terms the clause makes a distinction between determination of employment by notice and determination of employment as a disciplinary measure, retirement on superannuation, and termination for reasons of physical or mental incapacity: it does not confer authority upon the Railway Administration to terminate employment of a public servant holding a substantive post, as a disciplinary measure.

p. 776, margin F

The Rule is framed under Art. 309, and undoubtedly makes the tenure of a public servant appointed even substantively to hold a permanent post precarious. Ordinarily a railway servant appointed substantively to a permanent post would, under the rules governing employment, continue in service till he attains the age of superannuation but that tenure is made subject to compulsory retirement after he attains the prescribed age if the railway servant belongs to certain specified classes: vide Rule 2046(2) & (3) of the Railway Code, 1958, and to discharge from employment under Rule 148(3) if his service is non-pensionable. Incidents relating to termination of employment on superannuation, on orders of compulsory retirement, and on discharge from service under Rule 148(3) are parts of an organic scheme of rules governing the tenure of office of railway servants which also includes provisions relating to dismissal, removal or reduction in rank as a disciplinary measure. By being appointed to a post a railway servant becomes entitled to the pay and allowances, increments subject to efficiencybar, leave, gratuity, pension etc. These are also incidents of employment of the same character as the incident of determination of employment by compulsory retirement, discharge by notice and dismissal or removal.

pp. 776–777, margin F

In considering what the expression "dismissed or removed" used in Art. 311 means, a brief review of the relevant legislative history dealing with the tenure of office of civil servants in the employment of the Government of India may be useful. It is sufficient to note that since the earliest time all persons holding office-civil or military-under the East India Company were liable to be removed at the pleasure of the King of England: see s. 35 Charter Act 1793 (33 Geo. Ill Ch. 2): and 74 Charter Act 1833 (3 & 4 will IV Ch. 85). These provisions however did not take away the power of the Court of Directors to remove or dismiss any of its officers or servants not appointed by the Crown in England. The same tenure of service prevailed after the British Crown took over the governance of India, the power to make regulations in re!a:tion to appointments and admission to services and matters connected therewith being vested in the Secretary of State in Council: s. 37 Government of India Act 1858 (21 & 22 Viet. Ch. 106). For the first time under the Government of India Act, 1919 (9 & 10 Geo. V. Ch. 101) some protection was conferred upon the civil servants. By the first clause of s. 96-B the tenure of office of every employee under the civil service of the Crown was during pleasure of His ·Majesty, but dismissal from service by an authority subordinate to that by which the officer was appointed was prohibited. The. power of the Secretary of State for India in Council to make rules regulating classification of civil services, method of recruitment, conditions of service, pay, allowances, discipline and conduct was reaffirmed. This was

pp. 777–778

followed by ss. 240 to 243 of the Government of India N.E.F.Act, 1935 (26 Geo. V. & 1 Ed. 8 Ch. 2) which made detailed provisions relating to the tenure of office of persons employed in civil capacities, recruitment and conditions of service and rules to be made in that behalf including rules applicable to railway, custom, postal and telegraph services, and special provisions relating to the police. By s. 240, a guarantee against dismissal without being afforded an opportunity of showing cause to persons employed in civil capacities was provided. By cl. (1) except as provided by the Act, every member of a civil service held office during His Majesty's pleasure: by cl. (2) it was enacted that "no such person shall be dismissed from service, by any authority subordinate to that . by which he was appointed" and by cl. (3) it was enacted that "No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him". This was the guarantee of protection conferred by the Government of India Act 1935 upon members of the civil services and has since been affirmed by the Constitution in Art. 311 in almost the same terms-the slight verbal alteration substituting "dismissed or removed" for "dismissed" having made no variation in the content of the guarantee. In 1930 Rules were promulgated by the Secretary of State for India in Council under s. 96-B(2) of the Government of India Act, 1919, called the Classification, Control and Appeal Rules. These Rules did not in terms apply to railway servants, who were governed by a set of rules published as the Railway Establishment Code, but these were for all practical purposes in terms similar to the Civil Services (Classification, Control and Appeal) Rules, which may be called 'the General Rules'. Under cl. 49 of the General Rules penalties which could be imposed upon civil servants were enumerated and cl. 55 provided that no order of dismissal, removal or reduction shall be passed upon a civil servant unless he has been informed in writing of the grounds on which it is proposed to take action and he has been afforded adequate opportunity of showing cause against the action proposed to be taken. These Rules remained in force after the Government of India Act, 1935, was brought into operation. Even after the Constitution was brought into force, the rules continued to remain in operation till 1955, when a new set of rules were promulgated, but thereby in Rules 49 & 55 no substantial variation was made. It is clear that under the scheme of rules governing the employment of civil servants which obtained prior to the Constitution dismissal or removal had acquired a definite connotation, and when the Constitution-makers adopted the scheme of protection of public servants in the same form in which it prevailed earlier, an intention to attribute to the expression "dismissed and removed" the same content may be assumed in the absence of any expressed intention to the contrary. Since the constitutional guarantee of protection to public servants is couched in the same terms, the expression "removal" in the Service Rules having the same meaning as "dismissal" i.e., determination of employment as a disciplinary measure for misconduct, subject to the slight variation that an employee removed from service is not disqualified from future employment in public service, whereas a dismissed employee is so disqualified, it may reasonably be held that in the context of this development under the Constitution the expression "dismissed or removed" has not acquired a wider signification to include all terminations of public employment, whatever be the cause.

pp. 778–779

Apart from the historical evolution of the guarantee, there is inherent indication in the constitutional provisions that it was not the intention of the Constitution-makers to include in the expression "dismissed or removed" all terminations of employment. Guarantee of reasonable opportunity of showing cause against the action proposed to be taken in regard to a public servant, would be wholly inappropriate in cases of superannuation, expiry of the contractual priod of employment, expiry of the priod of probation or temporary employment, and resignations. · It would be futile in such cases to provide for "showing cause". The use of the expression "action proposed to be taken in regard to him" also suggests that termination of employment is of the nature of penal action.

pp. 779–780

There is yet another ground which must be taken into account. For nearly two centuries prior to the Constitution tenure of public servants has been expressly declared to be during the pleasure of the British Crown and that tenure has been repeated in the Constitution in Art. 310(1) with appropriate variations entrusting the power to the President or the Governor, as the case may be. Vitality of this declaration is emphasized in cl. (2) of Art. 310 so as to enable the President or the Governor to terminate even contractual employments at their respective pleasure. If the Constitution-makers intended that every termination of employment amounted to dismissal or removal within Art. 311, the provision of Art. 310, solemnly declaring that members of the services civil and defence hold office during the pleasure of the President is reduced to a meaningless formula having no practical content. The argument that it continues to apply to probationers and temporary employees ignores the plain words of the Constitution, beside unduly mini- . mising the content of the guarantee in Art. 311 which protects all public servants--temporary, probationers, contractual as well as those holding substantive posts.

p. 780

There is also a consistent body of authority which has taken the view that the expression "dismissed or removed" within the meaning of Art. 311 of the Constitution involves determinaion of employment as a disciplinary measure-that is termination of employment on some ground personal to · the officer concerned, such as incapacity or imputation of charge against him which renders it inexpedient or undesirable that he should continue in public employment: Salish Chandra Anand v. Union of IndiaW;Motl Shyam Lal v. State of Uttar Pradesh & The Union of Indid >; and Parshotam Lal Dhingra v. Union of India

pp. 780–781

In considering whether termination of employment of a public servant amounts to dismissal or removal, the primary test settled by a uniform course of authority is: does the termination amount to punishment of the public servant, i.e., has it the effect of depriving the public servant concerned of the rights which he has already acquired as a public servant, or does it involve evil consequences such as forfeiture of pay or allowances or other benefits which by the rules governing the tenure he has earned, or impute a stigma? A public servant appointed substantively to a post normally acquires a right to hold the post until he attains the age of superannuation, and in the absence of a contract or service rules governing the tenure, discharge from service would deprive him of the right he has to the post. Such deprivation of rights already accrued, or involving evil consequences, must in all cases amount to dismissal or removal, for, it amounts to imposing punishment. But mere termination of the right to hold a post not as a disciplinary measure, but according to the contract or rules governing his appointment and tenure, cannot be so regarded, because the rules which govern his right to the post make determination in the manner provided inherent in the right. By appointment to an office a public servant does not acquire a right to hold it for his natural life time or even during good behaviour. His right to hold it is during the pleasure of the President or the Governor, according as his employment is under the Union or the State: the right is also subject to the contract or rules governing the employment. Rules framed under Art. 309 relating to superannuation, to compulsory retirement on attaining a certain age, or completing a specified period of

pp. 781–782

service, or to determination of employment of tem- Dekaporary or quasi-permanent servants, or those on probation, form conditions of service, and govern the tenure, and it is difficult to perceive any distinction between those conditions of service, and the condition which expressly provides for determination of employment otherwise than as a matter of disciplinary measure. The title of a railway servant holding a nonpensionable office is subject to the condition of determination by notice under Rule 148(3) which as the clause expressly provides is not according to its terms exercisable as a disciplinary measure. It cannot be assumed that on acquisition of the office, a railway servant becomes entitled to a right to the post free from the conditions attaching thereto by the rules governing his employment. He is liable to vacate the office on superannuation, on compulsory retirement, on notice of determination, and on dismissal or removal alike, i.e., on the supervention of the prescribed conditions determination of employment of the prescribed class results, and not otherwise. Terminations resulting from causes other than dismissal or removal are solely governed by the rules, but in the matter of dismissal or removal, beside the conditions prescribed by the appropriate rules, the overriding provisions of the Constitution must be complied with.

p. 782

Under the Indian Railway Establishment Code, Vol. II, "lien" is defined in Rule 2003(14) as meaning the title of a railway servant to hold substantively, either immediately or on the termination of a priod or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. Evidently lien is the title which the railway servant has to a post, and a public servant appointed substantively must always till he is superannuated have lien on a specific post. On substantive promotion his lien would attach to another post, his earlier lien being superseded. While a railway servant appointed to another post substantively must have a lien to that post, it cannot be assumed that his lien continues to attach to any particular post. The lien is however subject to the rules: it does not in any manner confer a right to hold a post indefinitely.

pp. 782–783

Counsel for the appellants contended that all the appellants in this group of appeals were permanent employees, and even superannuation did not put an end to employment, since under the rules the super- . annuated employees had a right to pension. It is impossible to hold that a superannuated employee continues to remain employed. His employment is at an end: he is under no obligation to serve and earns no remuneration. The pension is but a payment made by the State for services already rendered and not in lieu of services being rendered, or which the public servant may be called upon to render. There can therefore be no distinction in principle between termination of employment of the employee attaining the prescribed age of superannuation, and termination of services in the manner prescribed by the rules, by notice, or by an order of compulsory retirement. In all cases employment comes to an end. Though the causes which result in termination are different, the effect is the same, viz., the public servant ceases to be employed.

p. 783

The argument that on being appointed to a public service, the employee acquires right to continue in employment, proceeds upon a misconception of the nature of appointment to a public post. Appointment to a public post is always subject to the pleasure of the President, the exercise of such pleasure being · restricted in the manner provided by the Constitution. A person appointed substantively to a post does not acquire a right to hold the post till he dies, he acquires thereby merely a right to hold the post subject to the rules i.e., so long as under the rules the employment is not terminated. If the employment is validly terminated, the right to hold the post is determined even apart from the exercise of the pleasure of the President or the Governor. There is in truth no permanent appointment of a public servant under the Union

pp. 783–784

or the State. Nor is the appointment to a public Dekapost during good behaviour, a public servant cannot claim to continue in office so long as he is of a good behaviour. · Such a concept of the tenure of a public servant's office is inconsistent with Arts. 309 and 310 of the Constitution .

p. 784

It may be recalled that the guarantee under Art. 311 protects a public servant against dismissal or removal or reduction in rank as a disciplinary measure. But if the determination of service does not amount to dismissal or removal as a disciplinary measure, there is nothing in the Constitution which prohibits such determination provided it is consistent with Art. 309 of the Constitution. The tenure of office is subject to Art. 310, prescribed by Art. 309 that is the governing code. The rules cannot undoubtedly provide for dismissal or removal otherwise than in a manner consistent with Art. 311. Nor can an authority acting under the rules validly terminate an appointment to a post in a manner contrary to the Constitution or the rules. Article 311 however covers only a part of the field governing the tenure of employment and in substance provides for a procedure for exercising the right to determine employment in certain specified classes of cases. To hold that this determination of employment must in all cases, whatever may be the source or the power in the exercise of which it is determined, is to attribute to it a more exalted effect than is warranted by the scheme of the Constitution disclosed by Arts. 309 and 310.

p. 784

The view which I have expressed is consistent with an overwhelming body of uniform authority dealing with different classes of cases in this Court, and we are asked to ignore the principle derived from that body of authority not on the ground of any demonstrable error but on the sole ground of a possible misuse of the powers entrusted to the Railway Administration and that was, as I understood, practically the only argument advanced at the Bar to justify a departure from the settled course of authority. But in considering whether cl. (3) of Rule 148 infringes the constitutional guarantee under Art. 311(2), the Court will not assume that in exercising the power to determine employment the authority competent in that behalf may not act honestly. The presumption always is that the high officials in whom the power is vested will perform the duties of their office honestly. A mere possibility that the power may in some cases be misused or abused, will not per se induce the Court to deny validity to the entrustment of the power. The impact of Art. 311 upon Rule 148(3) must be adjudged in the light of action which may be taken bona fide under the Rule. If in a given case the order is not bona fide, and is intended to comouflage an order of removal from service as a disciplinary measure, the protection of Art. 311(2) would undoubtedly be attracted, for such an order cannot be regarded as made in exercise of authority conferred by Rule 148(3). But the Court will not adjudge the rule invalid on the assumption that the rule may possibly be abused and may be made a cloak for imposing a punishment on a public servant or that the provision. might be utilised for a collateral purpose.

pp. 784–785

I will briefly refer to some of the illustrative decisions of this Court. In Satish Chandra Anand' s case( discharge from service by notice of a public servant employed under a contract for the duration of the Resettlement and Employment Organisation of the Union was held not to attract the protection of Art. 311 of the Constitution. The public servant in Satish Chandra Anand's case was continued in service after expiry of the period of his original employment, under a contract for the duration of the Organisation on condition that he was to be governed by the Central Civil Services (Temporary Service) Rules, 1949, which provided, inter alia, for termination of the contract by a month's notice on either side. This Court held. that to termination of his service (!)

p. 785

by notice according to the rules governing his employment, Art. 311 had no application. In the view of the Court the case was not of dismissal or removal from service, because the State has power to enter into contracts of temporary employment and impose special terms not inconsistent with the Constitution, and those who chose to accept the terms and entered into the contract were bound by them, even as the State was bound. This was a case of a premature termination of a contractual employment in exercise of a power reserved by Rules. The view expressed in Satish Chandra Anand's caseOl was approved in Parshotam Lal Dhingra's caseC2J.

p. 786

Several cases dealing with termination of employment of temporary employees or employees on probation have since arisen, and it has consistently been held that mere termination of employment of these employees not on the ground of any misconduct did not amount to dismissal or removal within the meaning of Art. 311. In Hartwell Prescott Singh v. The Uttar Pradesh Government and others an order discharging a temporary employee from service by giving him a month's notice as prescribed by Rule 25(4) of the U.P. Subordinate Agricl.llture Service Rules, by which he was governed, was held not to amount to dismissal or removal within the meaning of Art. 311. It was observed in that case that in principle there was no distinction between the termination of service under the "terms of a contract" and that in accordance with the "terms of conditions of service".

p. 786

In Parshotam Lal Dhingra's case Das, C.J., who entered upon an exhaustive review of the Rules governing service conditions of public servants of different classes (and with him all other members of the Bench except Bose J., agreed) observed at p. 842:

p. 786

" . . . in the case of an appointment to a permanent post in a Government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot com- Moti Ram plain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. Likewise an appointment to a temporary post in a Government service may be substantive or on probation or on an officiating basis. Here also, in the absence of any special stipulation or any specific service rule, the servant so appointed acquires no right to the post and his service can be terminated at any time except in one case, namely, when the appointment to a temporary post is for a definite period."

pp. 786–787

In The State of Bihar v. Gopi Kishore PrasadOl Sinha C.J., speaking for the Court summarised certain propositions governing the tenure of temporary public servants of which the following two are material:

p. 787

"(l) Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated, without taking recourse to the proceedings laid down in the relevant rules for. dismissing a public servant, or removing him from service.

p. 787

(2) The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment."

p. 787

In The State of Orissa and another v. Ram Narayan Das this Court held that a probationer may be discharged in the manner provided by Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules, and to such discharge from service Art. 311 (2) did not apply, for mere termination of employment does not carry with it any evil consequences and an order discharging a public servant, even if he is a 2 C. (2) 1 R. probationer, on the result of an enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may appropriately be regarded as one by way of punishment, but an order discharging a probationer after an enquiry to ascertain whether he was fit to be confirmed, is not of that nature.

pp. 787–788

In S. Sukhbans Singh v. The State of Punjab it was held that the protection of Art. 311 is available only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment, and one of the tests for ascertaining whether the termination of service was by way of punishment is whether under the Service Rules, but for such termination, the servant has the right to hold the post. The same view was expressed in Union Territory, Tripura v. Gopal Chandra Dattal and in Ranendra Chandra Bannerjee v. The Union of India(3).

p. 788

Two cases on the other side of the line, which emphasize the distinction between a mere order of discharge of a temporary servant, and an order dismissing a public servant as a disciplinary measure may be noticed. In Madan Gopal v. The State of Punjab and others this Court pointed out that where the employment of a temporary government servant, even though liable to be terminated by notice of one month without assigning any reason, is not so terminated, and the appointing authority holds an enquiry into his alleged misconduct, the termination of service is by way of punishment, because it casts a stigma on his competence and thus affects his career. In such a case the public servant 1s entitled to the protection of Art. 311(2) of the Constitution. In Jagdish Mitter v. The Union of India ( it was held that an order discharging a temporary servant from employment by notice after recording that he was "found undesirable to be retained in Government service" was one casting a stigma, and

p. 788

s.c.R. I. was therefore an order of dismissal attracting the application of Art. 311 (2) of the Constitution.

pp. 788–789

There is still another class of cases which illustrate the rule that termination of employment otherwise as a disciplinary measure does not amount to dismissal or removal. This Court has held that rules providing for compulsorily retiring public servants holding posts substantively are valid, and that termination of employment consequent upon such compulsory retirement does not amount to dismissal or removal from service so as to attract the protection of Art. 311(2).

p. 789

In Shyam Lal's case(IJ challenge to the validity of termination of employment of a member of the Indian Service of Engineers compulsorily retired after he completed service for 25 years was discountenanced by this Court on the ground that compulsory retirement under the Civil Services (Classification, Control and Appeal) Rules, after a public servant had served for 25 years, did not amount to dismissal or removal within the meaning of Art. 311 of the Constitution. It was observed that the word "removal" used synonymously with the term "dismissal" generally implied that the officer was regarded as in some manner blameworthy or deficient, the action of removal being founded on some ground personal to the officer ·involving levelling of some imputation or charge against him. But there was no such element of charge or imputation in the case of compulsory retirement which did not involve any stigma or implication of misbehaviour or incapacity, for, by the compulsory retirement the person concerned did not lose any benefit he had earned and loss of future prospects of earning could not be taken into account in considering whether the order of compulsory retirement amounted to imposing punishment.

p. 789

In The State of Bombay v. Subhagchand M. Doshi( it was held that Rule 165-A of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules adopted by the State of Saurashtra, subject to amendment, authorising the State Government to compulsorily (If1T955] I S.C.R. 26. (2) S.C.R.

p. 789

retire any public servant who had completed 25 years of qualifying service or had attained the age of 50 years, without giving any reason was not violative of Art. 311 (2) of the Constitution, as the order made under Rule 165-A was not one of dismissal or removal. Venkatarama Aiyar, J., observed at p. 579 (obiter as was pointed out in a later case): .

p. 790

"It should be added that quest10ns of the above character could arise only when the rules fix both an age of superannuation and an age for compulsory retirement and the services of a civil servant are terminated between these two points of time. But where there is no rule fixing the age of compulsory retirement, or if there is one and the servant is retired before the age prescribed therein, then that can be reregarded only as dismissal or removal within Art. 311(2)."

p. 790

In P. Balakottaiah v. The Union of India and othersOJ an order for compulsory retirement under Rule 3 of the Railway Services (Safeguarding of National Security) Rules, 1949, was challenged as contravening Art. 311 (2). The public servants concerned in those appeals were railway servants and their services were ter.minated on the ground that the General Manager of the Railways had reason to believe that they were guilty of "subversive activities". Notices were issued to them under s. 3 of the Rules to show cause against certain charges. The Committee of Advisers enquired into the charges and the explanations furnished by the public servants found the charges true. The General Manager acting on the report of the Committee terminated the services of the railway servants concerned giving them .a month's salary in lieu of notice. It was held by this Court that it is not every termination of the services of an employee that falls within the operation of Art. 311, and that it is only when the order is by way of punishment that it is one of dismissal or removal under that Article. It was further observed at p. 1065:

p. 790

"In the present case, the terms of employment provide for the services being terminated on a proper notice, and so, no question of premature termination arises. Rule 7 of the Security Rules preserves the rights of the employees to all the benefits of pension, gratuities and the like, to which they would be entitled under the rules. Thus, there is no forfeiture of benefits already acquired. . . . The order terminating the services under R. 3 of the Security Rules stands on the same footing as an order of discharge under R. 148, and it is neither one of dismissal nor of removal within the meaning of

p. 791

Art. 311." The Court in that case appeared to express the opinion, though it was not necessary for deciding the case, that an order of discharge under Rule 148(3) was neither one of dismissal nor removal within the meaning of Art. 311(2).

p. 791

In Parshotam Lal Dhingra's case the Court also considered the question whether an order of compulsory retirement of a public servant under the appropriate rules governing him amounts to dismissal or removal from service. At p. 861, Das C.J., · speaking for the majority of the Court observed:

p. 791

" . . every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, . . . . . Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Art. 311(2), as has also been held by this Court in Shyam Lal v. The State of Uttar Pradesh. In either of the two above-mentioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or all0wances under r. 52 of the Fundament!ll Rules."

p. 791

In a still more recent case-Dalip Singh v. State of PunjabOJ it was held by this Court that an order of compulsory retirement of a public servant for administrative reasons under R. 278 of the Patiala State Regulations-which Regulations did not fix the minimum age or length of service after which an order of compulsory retirement could be made,was not one of dismissal or removal from service within the meaning of Art. 311(2) of the Constitution, because retirement under a Service Rule which provided for compulsory retirement at any age irrespective of the length of service put in, cannot necessarily be regarded as dismissal or removal within the meaning of Art. 311, and the observations (hereinbefore quoted) made by Venkatarama Aiyar, J., in Saubhagchand Doshi's case(2) were for the purposes of deciding that case obiter, and that it was not a general rule that an order of compulsory retirement not amounting to dismissal or removal can take place only under a rule fixing the age of compulsory retirement.

p. 792

These decisions which examine diverse facets of the tenure of employment of public servants, establish beyond doubt that mere determination of employment of a public servant whether he be a temporary employee, a probationer, a contractual appointee or substantively holding a permanent post will not attract the provisions of Art. 311 (2) of the Constitution, unless the determination is imposed as a matter of punishment. All these decisions weave a clear pattern of employment of public servants who are governed by Rules providing for premature determination of employment. Such determination of service, founded on a right flowing from contract or the service rules, is not punishment and carries with it no evil consequences. It does not deprive the public servant of his right to the post, it does not forfeit benefits already acquired, and casts no stigma upon him. .

p. 792

A railway employee who has accepted employment on the conditions contained in the rules cannot after having obtained employment, claim that the (i) conditions which were offered to him and which he accepted, are not binding upon him. The sole exception to that rule is in cases where the condition prescribed by contract or statutory regulations is void as inconsistent with the constitutional safeguard, the exception being founded not on any right in the public servant to elect, but on the invalidity of the

pp. 792–793

· l f · d' covenant or regu 1 at10n. If the princip e o the bm mg nature of the rules as condition of employment is valid, I am unable to see any distinction between cases of termination of employment resulting from attaining the age of superannuation or from orders of compµlsory retirement, terminating contracts, terminating temporary employment, or employments on probation, and orders terminating employment after notice under Rule 148(3). If Rule 165-A of the Bombay Civil Services (Classification, Control and Appeal) Rules, as amended, which fell to be considered in Saubhag- Chand Doshi' s case <l was not invalid, if Rule 3 of the Railway Services (Safeguarding of National Security) Rules, 1949, which fell to be considered in P. Balakottaiah' s case< was not invalid, if Rule 278 of the Patiala State Regulations which fell to be considered in Dalip Singh' s case was not invalid, if Rule S(a) of the Central Government Services (Temporary Service) Rules, 1949, which fell to be considered in Satish Chandra Anand' s case was also not invalid, it is difficult to appreciate any ground either of logic or of law on which the vice of invalidity as infringing Art. 311(2) may be attributed to Rule 148(3 ). The termination of employment under Rule 148(3) does not involve the public servant concerned in loss of any right which he has already acquired, .it does not amount to loss of a post to which he is entitled under the terms of his employment, because the right to the post is necessarily circumscribed by the conditions of employment which include Rule 148(3) and does not cast any stigma upon him. In the result I am unable to agree that S.C.R. S.C.R. S.C.R. S.C.R. Rule 148(3) was invalid as infringing the guarantee of constitutional protection under Art. 311(2).

pp. 793–794

In appeals Nos. 837-839 of 1963 the quest10n as to the validity of the Rule 149(3) falls to be determined. That Rule was substituted for the original Rule 148(3) some time in year 1959. Rule 149 deals, by its first ·clause, with temporary railway servants and cl. (2) deals with apprentices. We are not concerned in these appeals either with temporary railway servants or with apprentices. In this Rule cl. (3) deals with the other railway servants. It provides:

p. 794

"The service of other railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not, however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of

p. 794

servke due to mental or physical incaoacity." The Rule then proceeds to set out the different periods for which notice may be given terminating employment. Clause (4) of the Rule provides for payment in lieu of notice. Rule 149(3) makes a departure from Rule 148(3). The latter Rule applied only to members of the non-pensionable service, whereas Rule 149(3) applies to all members of the railway service holding substantive appointments, and brings within its fold all employees--even those who have entered employment before the date on which the Rule was framed. But if by the terms of his appointment a railway servant who was not governed by Rule 148(3) is brought within Rule 149(3) so as to make his employment precarious by exposing him to liability to termination of employment, different considerations may apply. For reasons which I have already set out the conditions of service validly made under Art. 309 of the Constitution and in existence on the date when a public servant enters service would be binding upon him. There is nothing in Rule 149(3) which renders determination of employment in the manner provided therein per se inconsistent with Art. 311. But exercise of the power by the Railway Administration to determine employment of persons who were otherwise not subject to the new condition of service would, in my judgment, amount to imposing a penalty of dismissal or removal. Therefore termination of services of a person who held appointment to a substantive post and was entitled under the previous rules to continue until he attained the age of superannuation, or till compulsory retirement, Rule 149(3) made applicable to him after he entered service would per se amount to dismissal or removal and it would be inconsistent with Art. 311. This is not because the Rule is invalid, but because it would expose the public servant concerned to forfeiture, by amendment of the rules which were in existence at the time when he entered service, of rights which he had already acquired.

pp. 794–795

The alternative ground of invalidity that the rule infringes the fundamental right of equal protection of the laws under Art. 14 of the Constitution may now be considered. This ground was set up under two broad heads.

p. 795

(1) There is no other public employment under the Government of India in which conditions similar to these contained in Rule 148(3) or Rule 149(3) exist, and therefore discrimination between public servants employed in Railways and public servants employed in other branches of public undertakings or Administrative Services without any rational basis to support it, infringing the equal protection of laws guaranteed by Art.14

p. 795

of the Constitution, results. The argument posed in this form does not appear to have been raised before the High Court and no investigation has been made whether similar conditions of service do or do not exist in other public employments. In any event, employment in the Railways is in a vitally important establishment of the Union in which the employees are entrusted with valuable equipment and a large measure of confidence has to be reposed in them and on the due discharge of the duties the safety of the public and the efficient functioning of the governmental duties depend. Not only the travelling public, but the Union and the States have in a considerable measure to depend upon rail transport for the functioning of the governmental machinery and its welfare activities. It would be possible even for one or a few employees of the Railway

pp. 795–796

I . . f to para yse commumcat10ns and movement o essential supplies leading to disorder and confusion. The Railway service has therefore a special responsibility in the smooth functioning of our body politic and a doctrinnaire approach to equality of conditions of service in different branches of public employment, irrespective of the nature of the duties performed, irrespective of the possibility of harm to the community which misguided members or units may be capable of doing, and irrespective of the necessity to entrust special powers to terminate employment in deserving cases may not be permitted. If for the purpose of ensuring the interests and safety of the public and the State, the President has reserved to the Railway Administration power to terminate employment under the Railways, it cannot be assumed that such vesting of authority singles out the railway servants for a special or discriminatory treatment so as to expose the Rule which authorises termination of employment to the liability to be struck off as infringing Art. I 4. Article 14 undeniably forbids class legislation, but it does not forbid reasonable classification for the purpose of legislation. Legislation satisfying the test of classification founded on an intelligible differentia distinguishing persons, objects or things grouped together from others left out of the group, such differentia having a rational relation to the object sought to be achieved by the statute, has consistently been regarded as not open to challenge on the ground of infringing the equality clause of the constitution. The special conditions in which the Railways have to operate and the interests of the nation which they serve justify the classification, assuming the argument of classification to be factually correct. It need hardly be pointed out that the basis of classification need not be expressly mentioned by the impugned statute: it may be gathered from the surrounding circumstances known to or brought to the notice of the Court.

pp. 796–797

(2) Rules 148(3) and Rule 149(3) are so frame d as to lead to discriminatory freatment of

p. 797

. b b h . f R at 1 way servants, ecause y t e exercise o the arbitrary and uncontrolled power thereby conferred, exercise of which is not to be tested by any objective standard, service of any public servant falling within the classes to which they apply may be terminated. Conferment of such a power leads to denial

p. 797

of the equal protection of the laws. Rule 148(3) as it stood applied only to non-pensionable services and not to pensionable services, and Rule 149(3) applies to all railway servants holding posts pensionable and non-pensionable. In dealing with a similar argument in Satish Chandra Anand' s case(!) in the context of termination of employment of a servant employed on a contract for the duration of an Organisation but whose tenure was governed by the Central· Civil Services (Temporary Service) Rules, 1949, Bose, J., observed at p. 659:

p. 797

"There was no compulsion on the petitioner to enter into the contract he did. He was as free under the law as any other person to accept or to reject the offer which was made to him. Having accepted, he still has open to him all the rights and remedies available to other persons similarly situated to enforce any rights under his contract which have been denied to him, assuming there are any, and to pursue in the ordinary courts of the land such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could

pp. 797–798

claim." These observations in my judgment would, with appropriate variations, be applicable in considering the validity of Rules 148(3) & 149(3). In adjudging whether there is by the impugned rules a denial ·of the equal protection of the laws, no rational ground of distinction can be found between an employee who is but for the rule for termination of employment by notice, by the contract entitled to continue in employment for a specified duration, and one who is appointed to a substantive post till superannuation. In one case the employment is for a period defined or definable, in the other there is employment till superannuation, and in both cases liable to be terminated by notice. If with his eyes oren, a candidate for employment accepts a post permanent or temporary, tenure of which is governed by Rules, he cannot after accepting the post seek to avoid the onerous terms of employment. This is not to say that acceptance of covenants or rules which are inconsistent with the Constitution is binding upon the public servant by virtue of his employment. Such covenants or rules which in law be regarded as void, would not affect the tenure of his office.

p. 798

The law which applies to railway servants falling within the class to which Rules 148(3) and 149(3) apply is the same. There are no different laws applicable to members of the same class. The applicability of the law is also not governed by different considerations. It is open to the appointing authority to terminate appointment of any person who falls within the class. There is therefore neither denial of equality before the law, nor denial of equal protection of the laws. All persons in non-pensionable services were subject to Rule 148(3). There was no discrimination between them: the same law which protected other servants in the same group-nonpensionable servants-protected the appellants in appeals Nos. 711-714 of 1962, and also provided for determination of their employment.

p. 798

The Rule, it is true, does not expressly provide for guidance to the authority exercising the power conferred by Rule 148, but on that account the Rule cannot be said to confer an arbitrary power and be unreasonable, or be in its operation unequal. The power is exercisable by the appointing authority who normally is, if not the General Manager, a senior officer of the Railways. In considering the. validity of an order of determination of employment under Rule 148, an assumption that the power may be exercised mala fide and on that ground discrimination may be practised is wholly out of place. Because of the absence of specific directions in Rule 148 governing the exercise of authority conferred thereby, the power to terminate employment cannot be regarded as an arbitrary power exercisable at the sweet will of the authority, when having regard to the nature of the employment and the service to be rendered, the importance of the efficient functioning of the rail transport in the scheme of our public economy, and the status of the authority invested with the exercise of the power, it may reasonably be assumed that the exercise of the power would appropriately be exercised for the protection of public interest on grounds of administrative convenience. Power to exercise discretion is not necessarily to be assumed to be a power to discriminate unlawfully, and possibility of abuse of power will not invalidate the conferment of power. Conferment of power has necessarily to be coupled with the duty to exercise it bona fide and for effectuating the purpose and policy underlying the rules which provide for the exercise of the power. If in the scheme of the rules, a clear policy relating to the circumstances in which the power is to be exercised is discernible, the conferment of power must be regarded as made in furtherance of the scheme, and is not open to attack as infringing the equality clause. It may be remembered that the rules relating to termination of employment of temporary servants and those on probation, and even those relating to compulsory retirement generally do not lay down any specific directions governing the exercise of the powers conferred thereby. The reason is obvious: the appointing authority must in all these cases be left with discretion to determine employment having regard to the exigencies of the service, suitability of the employee for absorption or continuance in the cadre, and the larger interests of the public being served by retaining the public servant concerned in service. In my view Rule 148(3) cannot, therefore, be regarded as invalid either as infringing Art. 311(2) of the Constitution or as infringing Art. 14 of the Constitution. For the same reasons Rule 149(3) cannot also be regarded as invalid.

pp. 799–800

But the orders imposing upon the public servants determination of employment in exercise of the powers under Rule 149(3) made applicable to them when prior to the date on which the Rule was framed they were not applicable to them, would be void as infringing Art. 311(2) of the Constitution. As, however, on this part of the case there has been no investigation by the High Court, I would remand appeals Nos. 837-839 of 1963 to the High Court and dismiss appeals Nos. 711-714 of 1962.

p. 800

ORDER BY COURT

p. 800

In accordance with the opinion of the majority Civil Appeals Nos. 711-713 of 1962 and Civil Appeal No. 714 of 1962 are allowed with costs. The writ petitions filed by the four appellants in the three High Courts are granted and Orders directed to be issued in terms of the prayers made by them. Civil Appeals Nos. 837-839 of 1963 are dismissed with costs. One set of hearing fees in each group.

p. 800