Appeals Nos 711 713 of 1962
Appeals by special leave from the judgments and order dated May 27 25 1960 of the Assam High Court in Civil Rule Nos 3 and 25 of 1960 respectively and December 15 1959 of the Allahabad High Court in Special Appeal No 502 of 1958
CIVIL APPEAL No 614 OF 1962
Appeal by special leave from the order dated April 6 1961 of the Punjab High Court in Letters Patent Appeal No 811961
CIVIL APPEALS Nos 837 To 839 of 1963
Appeals from the judgment and order date January 18 1963 of the Assam High Court in Civil Rule 386 to 388 of 1961
BC Ghose and PK Chatterjee for the appellants in C A Nos 711 to 7131962
IM Lall and VD Mahajan for the appellant in CA Nos 714 of 1962
SV Gupte Additional Solicitor General Naunit Lal and RH Dhebar for the respondents in CA Nos
711 7141962
CK Daphtary Attorney General R Ganapathy Iyar and RH Dhebar for the appellants in CA Nos 837 8391963
BC Ghosh and PK Chatterjee for the respondents in CA Nos 837 8391963
RK Garg MK Ramamurthi SC Agarwal and DP Singh for the intervener in CA No 711 1962 689 RK Garg and PK Chatterjee for the intervener in CA Nos 837 8391963
December 5 1963
The Judgment of PB Gajendragadkar K N Wanchoo M Hidayatullah and N Rajagopala lyyangar JJ was delivered by Gajendragadkar J K Subba Rao and KC Das Gupta JJ
delivered separate Opinion section JC Shah J delivered a dissenting Opinion
GAJENDRAGADKAR J
These two groups of appeals have been placed before us for hearing together because they raise a common question of law in regard to the Constitutional validity of Rules 1483 and 1493 contained in the Indian Railway Establishment Code Vol
hereafter called the Code
The first group consists of four appeals
CA Nos 711  712 of 1962 arise from two petitions filed by the appellants Moti Ram Deka and Sudhir Kumar Das respectively in the Assam High Court
Deka was a peon employed by the North East Frontier Railway whereas Das was a confirmed clerk
They alleged that purporting to exercise its power under Rule 148 of the Code the respondent the General Manager North East Frontier  Railway terminated their ser vices and according to them the said termination was illegal inasmuch as the Rule under which the impugned orders of termination had been passed was invalid
This plea has been rejected by the Assam High Court and the writ petitions filed by the two appellants have been dismissed
It is against these orders of dismissal that they have come to this Court by special leave
Civil Appeal No 713 of 1962 arises out of a petition filed by the appellant Priya Gupta who was an Assistant Electrical Foreman employed by the North Eastern Railway Gorakhpur
His services having been terminated by the respondent General Manager of the said Railway he moved the Allahabad High Court under article 226 of the Constitution and challenged the validity of the order terminating his services on the ground that Rule 148 of the Code was invalid
The appellant s plea has been rejected 1SCI64 44 690 by the said High Court both by the learned single Judge who heard his petition in the first instance and by the Division Bench which heard his Letters Patent Appeal
That is how the appellant has come to this Court by special leave
Civil Appeal No 7141962 arises out of a writ petition filed by Tirath Ram Lakhanpal who was a Class A Guard employed by the Northern Railway New Delhi
His services were terminated by the Respondent General Manager of the said Railway r under Rule 148 of the Code and his writ petition to quash the said order has been dismissed by the Punjab High Court
The learned single Judge who heard this writ petition rejected the pleas raised by the appellant and the Division Bench which the appellant moved by way of Letters Patent Appeal summarily dismissed his Appeal
It is this dismissal of his Letters Patent Appeal which has brought the appellant to this Court by Special Leave
That is how this group of four appeals raises a common question about the validity of Rule 148
The next group consists of three appeals which challenge the decision of the Assam High Court holding that the orders of dismissal passed by appellant No 2 the General Manager North East Frontier Railway against the three respective respondents SB Tewari Parimal Gupta and Prem Chand Thakur under Rule 149 of the Code were invalid
These three respondents had moved the Assam High Court for quashing the impugned orders terminating their services and the writ petitions having been heard by a special Bench of the said High Court consisting of three learned Judges the majority opinion was that the impugned orders were orders of dismissal and as such were outside the purview of Rule 149
According to this view though Rule 149 may not be invalid the impugned orders were bad because as orders of dismissal they were not justified by Rule 149
The minority view was that Rule 149 itself is invalid and so the impugned orders were automatically invalid
In the result the three writ petitions 691 filed by the three respondents respectively were allowed
That is why the Union of India and the General Manager NEF Railway appellants 1  2 respectively have come to this Court with a certificate granted by the Assam High Court
and they challenge the correctness of both the majority and the minority views
Thus in these three appeals the question about the validity of Rule 149 falls to be considered
The first group of four appeals was first heard by a Constitution Bench of five Judges for some time
At the hearing before the said Bench the learned Addl
Solicitor General conceded that the question about the validity of Rule 148 had not been directly considered by this Court on any occasion and so it could not be said that it was covered by any previous decision
After the hearing of the arguments before the said Bench had made some progress the learned Addl
Solicitor General suggested that he was strongly relying on certain observations made in the previous decisions of this Court and his argument was going to be that the said observations are consistent with his contention that Rule 148 is valid and in fact they would logically lead to that inference
That is why the Bench took the view that it would be appropriate if a larger Bench is constituted to hear the said group of appeals and so the matter was referred to the learned Chief Justice for his directions
Thereafter the learned Chief Justice ordered that the said group should be heard by a larger Bench of seven Judges of this Court
At that time direction was also issued that the second group of three appeals which raised the question about the validity of Rule 149 should be placed for hearing along with the first group
In fact the learned counsel appearing for both the parties in the said group themselves thought that it would be appropriate if the two groups of appeals are heard together
That is how the two groups of appeals have come for disposal before a larger Bench and so the main question which we have to consider is whether Rule 1483 and Rule 1493 which has superseded it are valid
The contention of the 692 railway employees concerned is that these Rules contravene the Constitutional safeguard guaranteed to civil servants by article 3112
It is common ground that if it is held that the Constitutional guarantee prescribed by article 31112 is violated by the Rules they would be invalid on the other hand the Union of India and the Railway Administration contend that the said Rules do not contravene article 3112 but are wholly consistent with it
At this stage it would be
convenient to refer r to the two Rules
Rule 148 deals with the termination of service and periods of notice
Rule 1481 deals with temporary railway servants R 1482 deals with apprentices and R 1483 deals with other non pensionable railway servants
It is with R 1483 that we are concerned in the present appeals
It reads thus 3 Other non pensionable railway servantsThe 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 Note The appointing authorities are empower ed to reduce or waive at their discretion the stipulated period of notice to be given by an employee but the reason justifying their action should be recorded
This power cannot be re delegated
 Then follow the respective periods for which notice has to be given
It is unnecessary to refer to these periods
We may incidentally cite Rule 1484 as well which reads thus 693 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
 It is thus clear that R 1483 empowers the appropriate authority to terminate the services of other nonpensionable railway servants after giving them notice for the specified period or paying them their salary for the said period in lieu of notice under R 1484
The non pensionable services were brought to an end in November 1957 and an option was given to the non pensionable servants either to opt for pension
able service or to continue on their previous terms and conditions of service
Thereafter Rule 149 was framed in place of R 148
Rule 1491  2 like Rule 1481  2 deal with the temporary railway servants and apprentices respectively
Rule 1493 deals with other railway servants it reads thus Other railway servants The services 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 service due to mental or physical incapacity The Rule then specifies the different periods for which notice has to be given in regard to the different categories of servants It is unnecessary to refer to these periods
Then follow sub rule 4
The same may be conveniently set out at this place 4 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
Note The appointing authorites are empowered to reduce or waive at their discretion the stipulated period of notice to be given by an employee but the reason justifying their action should be recorded
This power cannot be re delegated
 Just as under  Rule 1483 the services of the railway employees to which it applied could be terminated after giving them notice for the period specified so under R 1493 termination of services of the employees concerned can be brought about by serving them with a notice for the requisite period or paying them their salary for the said period in lieu of notice under R 1494
Rule 1493 applies to all servants other than temporary servants and apprentices
The distinction between pensionable and non pensionable servants no longer prevails
The question which we have to consider in the present appeals is whether the terminationof services of a permanent railway servant under Rule 1483 or Rule 1493amounts to his removal under article 3112 of the Constitution
If it doesthe impugned Rules are invalid if it does not the said Rules are valid
That takes us to the question as to the true scope and effect of the provisions contained in Art3112and the decision of this question naturally involves the construction of article 3112 read in the light of Articles 309 and 310
In considering this point if may be useful to refer very briefly to the genesis of these provisions and their legislative background
In this connection it would be enough for our purpose if we begin with the Government of India Act 1833
Section 74 of the said Act made the tenure of all Services under the East India Company subject to His Majesty s pleasure
These servants were also made subject to the pleasure of the Court of Directors with a proviso which excepted from the said rule those who had been appointed directly by His Majesty
In due course when the Crown took over the government of this country by the Government of India Act 1858 section 3 conferred on the Secretary of 695 State all powers which has till then vested in the Court of Directors while the powers in relation to the servants of the Company which had till then vested in the Director were by section 37 delegated to the Secretary of State
This position continued until we reach the Government of India Act 1915
This Act repealed all the earlier Parliamentary legislation and was in the nature of a consolidating Act
There was however a saving clause contained in section 130 of the said Act which preserved the earlier tenures of servants and continued the rules and regulations applicable to them
Section 96B of this Act which was enacted in 1919 brought about a change in the constitutional position of the civil servants  Section 96B1 in substance provided that subject to the provisions of this Act and the rules made thereunder every person in the civil service of the Crown in India holds office during His Majesty s pleasures and it added that no person in that service may be dismissed by any authority subordinate to that by which he was appointed
It also empowered the Secretary of State in Council to reinstate any person in that service who had been dismissed except so far as the Secretary of State in Council may by rules provide to the contrary
Section 96B2 conferred power on the Secretary of State in Council to make rules for regulating the classification of the Civil Services in India the method of recruitment the conditions of service pay and allowances and discipline and conduct while sub section 4 declared that all service rules then in force had been duly made and confirmed the same
In 1935 the Government of India Act 1935 was passed and section 96B 1 was reproduced in subsection 1 and 2 of section 240 and a new sub section was added as sections 3
By this new sub section protection was given to the civil servant by providing that he shall not be dismissed or reduced in rank until he had be en given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him
The definition contained in section 277 of the said 596 act shows that the expression dismissal included removal from service
That continued to be the position until the Constitution was adopted in 1950
The Constitution has dealt with this topic in Articles 309 310 and 311
Art310 deals with the tenure of office of persons serving the Union or a State and provides that such office is held during the pleasure of the President if the post is under the Union or during the pleasure of the Governor if the post is under a State
The doctrine of pleasure is thus embodied by article 3101
article 3102 deals with cases of persons appointed under contract and it provides that if the President or the Governor deems it necessary in order to secure the services of a person having special qualifications he may appoint him under a special contract and the said contract may provide for the payment to him of compensation if before the expiration of an agreed period that post is abolished or he is for reasons not connected with any misconduct on his part required to vacate that post
it is significant that article 3101 begins with a clause except as expressly provided by this Constitution 
In other wordsif there are any other provisions in the Constitution which impinge upon it the provisions of article 3101 must be read subject to them
The exceptions thus contemplated may be illustrated by reference to Articles 124 148 218 and 324
Another exception is also provided by article 31 1
In other words article 311 has to be read as a proviso to article 310 and so there can be no doubt that the pleasure contemplated by article 3101 must be exercised subject to the limitations prescribed by article 31 1
article 309 provides that subject to the provisions of the constitution Acts of the appropriate Legislative may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State
This clearly means that the appropriate Legislature may pass Acts in respect of the terms and conditions of service of persons appointed to public 697 services and posts but that must be subject to the provisions of the constitution which inevitably brings in article 3101
The proviso to article 309 makes it clear that it would be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union and for the Governor of a State or such person as he may
direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment and prescribing the conditions of service of persons respectively appointed to services and posts under the Union or the State The pleasure of the President or the Governor mentioned in article 3101 can thus be exercised by such person as the President or the Governor may respectively direct in that behalf and the pleasure thus exercised has to be exercised in accordance with the rules made in that behalf
These rules and indeed the exercise of the powers conferred on the delegate must be subject to article 310 and so article 309 cannot impair or affect the pleasure of the President or the Governor therein specified
There is thus no doubt that article 309 has to be read subject to Articles 310 and 31 1 and article 310 has to be read subject to Art 311
It is significant that the provisions contained in article 311 are not subject to any other provision of the Constitution
Within the field covered by them they are absolute and paramount
What then is the effect of the provisions contained in article 3112 article 3112 reads thus No such person as aforesaid shall be dis missed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action propo sed to be taken in regard to him
 We are not concerned with the cases covered by the proviso to this article in the present appeals
It may be taken to be settled by the decisions of this Court that since article 311 makes no distinction between permanent and temporary posts its protection must be held to extend to all government servants holding 698 permanent or temporary posts or officiating in any of them
The protection afforded by article 3112 is limited to the imposition of three major penalties contemplated by the service Rules viz dismissal removal or reduction in rank
It is true that the consequences of dismissal are more serious than those of removal and in that sense there is a technical distinction between the two but in the context dismissal removal and reduction in rank which are specified by article 311 2 represent actions taken by way of penalty
In regard to temporary servants or servants on probation every case of termination of service may not amount to removal
In cases falling under these categories the terms of contract or service rules may provide for the termination of the services on notice of a specified period or on payment of salary for the said period and if in exercise of the power thus conferred on the employer the services of a temporary or probationary servant are terminated it may not necessarily amount to removal
In every such case courts examine the substance of the matter and if it is shown that the termination of services is no more than discharge simpliciter effected by virtue of the contract or the relevant rules article 3112 may not be applicable to such a case
If however the termination of a temporary servant s services in substance represents a penalty imposed on him or punitive action taken against him then such termination would amount to removal and article 3112 would be attracted
Similar would be the position in regard to the reduction in rank of an officiating servant
This aspect of the matter has been considered by this Court in several recent decisions vide Jagdish Mitter vs Union of India1 State of Bihar vs Gopi Kishore  Prasad2 State of Orissa  Anr
vs Ram Narayan Das3 section Sukhbans Singh vs The State of Punjab4 and Madan Gopal vs The State of Punjab  Qrs
5 1 A 1
R 3  2  4  5 1963 3 section C R 716
699 This branch of the law must therefore be taken to be well settled
In regard to servants holding substantively a permanent post who may conveniently be describe hereafter as permanent servants it is similarly wellsettled that if they are compulsorily retired under the relevant service rules such compulsory retirement does not amount to removal under article 311 2
Similarly there can be no doubt that the retire ment of a permanent servant on his attaining the age of superannuation does not amount to his removal within the meaning of article 3112
The question which arises for our decision in the present appeals is if the service of a permanent civil servant is terminated otherwise than by operation of the rule of superannuation or the rule of compulsory retirement does such termination amount to removal under article 3112 or not  It is on the aspect of the question that the controversy between the parties arises before us
Before dealing with this problem it is necessary to refer to the relevant
Railway Rules themselves Speaking historically it appears that even while the affairs of the country were in charge of the East India Company there used to be some regulations which were substantially in the nature of administrative instructions in regard to the conditions of service of the Company s employees
These regulations were continued by section 130c of the Government of India Act 1915 which provided inter alia that the repeal shall not affect the tenure of office conditions of service terms of remuneration or right to pension of any officer appointed before the commencement of this Act
Section 96B2 which was inserted in the said Act in 1919 however provided that the said regulations could be modified or superseded by rules framed by the Secretary of State
In due course the Secretary of State framed certain rules The first batch of rules was framed in December 1920
They applied to all officers in the All India Provincial as well as Subordinate Services and governed 700 even officers holding special posts
The Local Government had a limited power in respect of officers in the All India Services under their employment and this power was confined to imposing on them punishments of censure reduction withholding of promotion and suspension vide Rule 10 in the case of Provincial Services however the powers of the Local Government were plenary They could not only impose the penalties to which we have just referred but also remove or dismiss them vide Rule 13
It appears that Rule 14 prescribed the procedure which had to be followed in imposing the penalty of dismissal removal or reduction and so it may be said that for the first time these three major punishments were collated together and a special procedure prescribed in that behalf
No definition of removal was however prescribed
Incidentally we may refer to Rule XX which is included in the group of rules relating to appeals
Under this rule an appeal would not lie against 1 the discharge of a person appointed on probation before the end of his probation and 2 the dismissal and removal of a person appointed by an authority in India to hold a temporary appointment
It would be permissible to point out that this provision would show that the termination of the services of a person permanently employed would not have fallen within the ambit of this rule
The Rules thus framed in 1920 were amended from time to time and were re issued in June 1924
It appears that subsequent to 1924 fresh rules were made under the Governors Provinces Civil Services Control and Appeal Rules and Governors Provinces Civil Services Delegation Rules of 1926 which were published in March 1926
Then followed the Rules framed by the Secretary of State in 1930
These Rules were in force when the Government of India Act 1935 was enacted and they continue in force even now by reason of Article 313
We ought to add that these Rules superseded all the earlier rules and constitute an exhaustive code as regards disciplinary matters
Rule 3b of these rules excluded the 701 Railway Servants from the application of said rules and that furnishes the historical background why separate Fundamental Rules for Railway corresponding to the Fundamental Rules in other public services came to be framed
Before we proceed to the relevant Railway Rule we may incidentally mention Rule 49 of the Rules framed by the Secretary of State in 1930
This provides that penalties may for good and sufficient reason and as hereinafter provided be imposed upon members of the services comprised in any of the clauses 1 to 5 specified in Rule 14
These penalties
number seven in all
Amongst them are mentioned reduction to a lower post dismissal and removal
Then follows an explanation which is useful for our purpose
Before quoting that explanation it may be
pointed out that the said explanation which was originally introduced under Rule 49 was subsequently amended once in 1948 then in 1950 lastly in 1955 when explanation No 2 was added Thus amended the two explanations read as follows Explanation 1 The termination of employment a of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the appointment and the rules governing the probationary service or b of a temporary Government servant appointed otherwise than under contract in accordance with rule 5 of the Central Civil Services Temporary Service Rules 1949 or c of a person engaged under a contract does not amount to removal or dismissal within the meaning of this rule or of rule 55
Explanation II Stopping a Government Servant at an efficiency bar in the time scale of his pay on the ground of his unfitness to cross the bar does not amount to withholding of increments or promotions within the meaning of this rule
 702 Looking at clauses a b and c of Explanation 1 it would be apparent that these clauses deal with persons appointed on probation or appointed as temporary servants or engaged on a contract and the effect of the said explanation is that the termination of the services of such persons does not amount to removal or dismissal within the meaning of Rule 49 or Rule 55
In other words R 49 read along with explanation 1 wouldprima facie inferentially support the contention that in regard to a permanent civil servant the termination of his services otherwise than under the rule of superannuation or compulsory retirement would amount to removal
Let us then consider the relevant Railway Fundamental Rules which have a bearing on the point with which we are concerned
Paragraph 2003 of the Code Vol 11 which corresponds to Fundamental Rule 9 contains definitions
Fundamental Rule 914 defines a lien as meaning the title of a Railway servant to hold substantively either immediately or on the termination of a period or periods of absence a permanent post including a tenure post to which he has been appointed substantively
An officiating servant is defined by FR 919 as one who performs the duties of a post on which another person holds a lien or when a competent authority appoints him to officiate in a vacant post on which no other railway servant holds a lien
There is a proviso to this definition which is not relevant for our purpose
That takes us to the definition of a permanent post which under FR 922 means a post carrying a definite rate of pay sanctioned without limit of time
A temporary post on the other hand means under FR 9 29 a post carrying a definite rate of pay sanctioned for a limited time and a tenure post means under F R 9 30 a permanent post which an individual railway servant may not hold for more than a limited period
It is thus clear that as a result of the relevant definitions a permanent post carries a definite ate of pay without a limit of time and a servant who substantively holds a permanent post has 703 a title to hold the post to which he is substantively appointed and that in terms means that a permanent servant has a right to hold the post until of course he reaches the age of superannuation or until he is compulsorily retired under the relevant rule
It is in the light of this position that we must now proceed to examine the question as to whether the termination of the permanent servant s services either under Rule 1483 or R 1493 amounts to his removal or not
On this point two extreme contentions have been raised before us by the parties The learned Addl
Solicitor General contends that in dealing with the present controversy we must bear in mind the doctrine of pleasure which has been enshrined in article 3101
He argues that every civil servant holds his office during the pleasure the President or the Governor
It is true that in the present cases we are dealing with rules framed under the proviso to article 309 and in that sense the question of pleasure on which so much stress is laid by the learned Addl
Solicitor General may not directly arise but it must be conceded that the point raised for our decision may have some impact on the doctrine of pleasure and so it needs to be examined
The argument is that all civil service is strictly speaking precarious in character
There is no guarantee of any security of tenure because the pleasure of the President or the Governor can be exercised at any time against the civil servant
It is true that this pleasure would not be exercised capriciously unjustly or unfairly but the existence of the doctrine of pleasure inevitably imposes a stamp of precarious character on the tenure enjoyed by the civil servant and so it is urged whether Rule 148 or R 149 is made or not it would be open to the President or the Governor to terminate the services of any civil servant to whose case article 1101 applies
The learned Addl
Solicitor General has also impressed upon us the necessity to construe article 3101 and article 311 in such a manner that the pleasure contemplated by article 3101 does not become illusory or is not completely obliterated
He therefore suggests that article 3112 which is in the nature of a proviso or an exception to article 3101 must be strictly construed and in all cases falling outside the scope of the said provision the pleasure of the President or the Governor must be allowed to rule supreme
On the other hand it has been urged by the learned counsel appearing for the railway servants concerned before us that the pleasure of the President is controlled by article 311 and if the argument of the learned Addl
Solicitor General is accepted and full scope given to the exercise of the said pleasure article 311 itself would become otiose
It is urged that the employment in civil service can be terminated only after complying with article 311 and any rule which violates the guarantee provided by the said Article would be invalid
In fact the argument on the other side is that the word removal should receive a much wider denotation than has been accepted by this Court in its decisions bearing on the point and that all terminations of services in respect of all categories of public servants should be held to constitute removal within article 3112
We are inclined to hold that the two extreme contentions raised by both the parties must be rejected
There is no doubt that the pleasure of the President on which the learned Addl
Solicitor General so strongly relies has lost some of its majesty and power because it is clearly controlled by the provisions of article 31 1 and so the field that is covered by article 311 on a fair and reasonable construction of the re levant words used in that article would be excluded from the operation of the absolute doctrine of pleasure
The pleasure of the President would still be there but it has to be exercised in accordance with the requirements of article 311
Besides as this Court has held in the State of Bihar vs Abdul Majid1 the rule of English Law pithily expressed in the latin phrase duranto bene placito during pleasure has not been fully adopted either 1   799 705 by section 240 of the Government of India Act 1935 or by article 3 1 01
To the extent to which that rule has been modified by the relevant provisions of section 240 of the Government of India Act 1935 or article 311 the Government servants are entitled to relief like any other person under the ordinary law and that relief must be regulated by the Code of Civil Procedure
It is mainly on the basis of this principle that this Court refused to apply the doctrine against abdul Majid that a civil servant cannot maintain suit against a State or against the Crown for the recovery of arrears of salary due to him
Thus the extreme contention based on the doctrine of pleasure enshrined in article 3101 cannot be sustained
Similarly we do not think it would be possible to accept the argument that the word removal in article 3112 should receive the widest interpretation
Apart from the fact that the said provision is in the nature of a proviso to article 3 1 01 and must therefore be strictly construed the point raised by the contention is concluded by the decisions of this Court and we propose to deal with the present appeals on the basis that the word  removal like the two other words dismissal and reduction in rank used in article 3112 refer to cases of major penalties which were specified by the relevant service rules
Therefore the true position is that Articles 310 and 311 must no doubt be read together but once the true scope and effect of article 311 is determined the scope and effect of article 3101 must be limited in the sense that in regard to cases falling under article 3112 the pleasure mentioned in article 3101 must be exercised in accordance with the requirements of article 311
It is then urged by the learned Addl
Solicitor General that article 310 does not permit of the concept of tenure during good behaviour
According to him in spite of the rule of superannuation the services of a civil servant can be terminated by the President exercising his pleasure at any time
The rule of superannuation on this contention merely gives an indication to the civil servant as to the length of time 1SCI64 45 706 he may expect to serve but it gives him no right to continue during the whole of the said period
In fact the learned Addl
Solicitor General did not disguise the act that according to his argument Whether or not a rule of superannuation is framed and whether or not Rule 148 or R 149 is issued the President s pleasure can be exercised independently of these Rules and the action taken by the President in exercise of his pleasure cannot be questioned under article 3112
Alternatively_ he contends that if article 3112 is read in a very general and wide sense even the rule as to the age of superannuation may be questioned as being invalid because it does put an end to the service of a civil servant
We are not impressed by this argument
We will no doubt have to decide what cases of termination of services of permanent civil servants amount to removal but once that question is determined wherever it is shown that a permanent civil servant is removed from his service article 3112 will apply and article 3101 cannot be invoked independently with the object of justifying the contravention of the provisions of article 3112
In regard to the age of superannuation it may be said prima facie that rules of superannuation which are prescribed in respect of public services in all modem States are based on considerations of life expectation mental capacity of the civil servants having regard to the climatic conditions under which they work and the nature of the work they do
They are not fixed on any ad hoc basis and do not involve the exercise of any discretion
They apply uniformly to all public servants falling under the category in respect of which they are framed
Therefore no analogy can be suggested between the rule of superannuation and Rule 1483 or Rule 1493
Besides nobody has questioned the validity of the rule of superannuation and so it would be fruitless and idle to consider whether such a rule can be challenged at all
Reverting then to the nature of the right which a permanent servant has under the relevant Railway Rules what is the true position A person Who 707 substantively holds a permanent post has a right to continue in service subject of course to the rule of superannuation and the rule as to compulsory retirement
If for any other reason that right is invaded and he is asked to leave his service the termination of his service must inevitably mean the defeat of his right to continue in service and as such it is in the nature of a penalty and amounts to removal
In other words termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement must per se amount to his removal and so if by R 1483 or IC
1493 such a termination is brought about the Rule clearly contravenes article 3112 and must be held to be invalid
It is common ground that neither of the two Rules contemplates an enquiry and in none of the cases before us has the procedure prescribed by article 3112 been followed
We appreciate the argument urged by the learned Addl
Solicitor General about the pleasure of the President and its significance but since the pleasure has to be exercised subject to the provisions of article 31 1 there would be no escape from the conclusion that in respect of cases falling under article 3112 the procedure prescribed by the said Article must be complied with and the exercise of pleasure regulated accordingly
In this connection it is necessary to emphasise that the rule making authority contemplated by article 309 cannot be validly exercised so as to curtail or affect the rights guaranteed to public servants under article 3111
article 3111 is intended to afford a sense of security to public servants who are substantively appointed to a permanent post and one of the principal benefits which they are entitled to expect is the benefit of pension after rendering public service for the period prescribed by the Rules
It would we think not be legitimate to contend that the right to earn a pension to which a servant substantively appointed to a permanent post is entitled can be curtailed by Rules framed under article 309 so as to make the said right either ineffective or illusory
Once the scope of article 3111 and 2 is duly determined it must be held that no Rule 708 framed under article 309 can trespass on the rights guaranteed by article 311
This position is of basic importance and must be borne in mind in dealing with the controversy in the present appeals
At this stage we ought to add that in a modern democratic State the efficiency and incorruptibility of public administration is of such importance that it is essential to afford to civil servants adequate protection against capricious action from their superior authority
If a permanent civil servant is guilty of misconduct he should no doubt be proceeded against promptly under the relevant disciplinary rules subject of course to the safeguard prescribed by article 3112 but in regard to honest straightforward and efficient permanent civil servants it is of utmost importance even from the point of view of the State that they should enjoy a sense of security which alone can make them independent and truly efficient
In our opinion the sword of Damocles hanging over the heads of permanent railway servants in the form of R 1483 or R 1493 would inevitably create a sense of insecurity in the minds of such servants and would invest appropriate authorities with very wide powers which may conceivably be abused
In this connection no distinction can be made between pensionable and non pensionable service
Even if a person is holding a post which does not carry any pension he has a right to continue in service until he reaches the age of superannuation and the said right is a very valuable right
That is why the invasion of this right must inevitably mean that the termination of his service is in substance and in law removal from service
It appears that after Rule 149 was brought into force in 1957 another provision has been made by Rule 321 which seems to contemplate the award of some kind of pension to the employees whose services are terminated under Rule 1493
But it is significant that the application of R 1493 does not require as normal rules of compulsory retirement do that the power conferred by the said Rule can be exercised in respect of servants who have 709 put in a prescribed minimum period of service
Therefore the fact that some kind of proportionate pension is awardable to railway servants whose services are terminated under R 1493 would not assimilate the cases dealt with under the  said Rule to cases of compulsory retirement
As we Will presently point out cases of compulsory retirement which have been considered by this Court were all cases where the rule as to compulsory retirement came into operation before the age of superannuation was reached and after a Prescribed minimum period of service had been put in by the servant
It is true that the termination of service authorised by R 1483 or R 1493 contemplates the right to terminate on either side
For all practical purposes the right conferred on the servant to terminate his services after giving due notice to the employer does not mean much in the present position of unemployment in this country but apart from it the fact that a servant has been given a corresponding right cannot detract from the position that the right which is conferred on the railway authorities by the impugned Rules is inconsistent with article 3112 and so it ha to be struck down in spite of the fact that a simila right is given to the servant concerned
It has however been urged that the railway servants who entered service with the full knowledge of these Rules cannot be allowed to complain that the Rules contravene article 311 and are therefore invalid
It appears that under Rule 144 which was originally Rule 143 it was obligatory on railway servants to execute a contract in terms of the re levant Railway Rules
That is how the argument based on the contract and its binding character arise If a person while entering service executes a contract containing the relevant Rule in that behalf with open eyes how can he be heard to challenge the validity of the said Rule or the said contract In our opinion this approach may be relevant in dealing with purely commercial cases governed by rules of contract but it is wholly inappropriate in dealing with a case 710 where the contract or the Rule is alleged to violate a constitutional guarantee afforded by article 3112 land even as to commercial transactions it is wellknown that if the contract is void as for instance under section 23 of the Indian Contract Act the plea that it was executed by the party would be of no avail
In any case we do not think that the argument of contract and its binding character can have validity in dealing with the question about the constitutionality of the impugned Rules
Let us then test this argument by reference to the provisions of article 3111
article 3111 provides that no person to whom the said article applies shall be dismissed or removed by an authority subordinate to that by which he was appointed
Can it be suggested that the Railway Administration can enter into a contract with its employees by which authority to dismiss or remove the employees can be delegated to persons other than those contemplated by article 311 1 The answer to this question is obviously in the negative and the same answer must be given to the conten tion that as a result of the contract which embodies the impugned Rules the termination of the railway servant s services would not attract the provisions of article 3112 though in law it amounts to removal
If the said termination does not amount to removal then of course article 3112 would be inapplicable and the challenge to the validity of the impugned Rules would fail but if the termination in question amounts to a removal the challenge to the validity of the impugned Rules must succeed notwithstanding the fact that the Rule has been included in a contract signed by the railway servant
There is one more point which still remains to be considered and that is the point of construction
The learned Add1
Solicitor General argued that in construing the impugned Rule 1483 as well as R 1493 we ought to take into account the fact that the Rule as amended has been so framed as to avoid conflict with or non compliance of the provisions of article 3112 and so he suggests that we should 711 adopt that interpretation of the Rule which would be consistent with article 3112
The argument is that the termination of services permissible under the impugned Rules really proceeds on administrative grounds or considerations of exigencies of service
If for instance the post held by a permanent servant is abolished or the whole of the cadre to which the post belonged is brought to an end and the railway servant s services are terminated in consequence that cannot amount to his removal because the termination of his services is not based on any consi deration personal to the servant
In support  of this argument the Addl
Solicitor General wants us to test the provision contained in the latter portion of the impugned Rules
We are not impressed by this argument
What the latter portion of the impugned Rules provides is that in case a railway servant is dealt with under that portion no notice need be served on him
The first part of the Rules can reason ably and legitimately take in all cases and may be used even in respect of cases falling under the latter category provided of course notice for the specified period or salary in lieu of such notice is give to the railway servant
There is no doubt that on a fair construction the impugned Rules authorise the Railway Administration to terminate the services of all the permanent servants to whom the Rules apply merely on giving notice for the specified period or on payment of salary in lieu thereof and that clearly amounts to the removal of the servant in question we are satisfied that the impugned Rules are invalid in as much as they are inconsistent with the provision contained in article 3112
The termination of the permanent servants tenure Which is authorised the said Rules is no more and no less than their removal from service and so article 3112 must come into play in respect of such cases That being so
the Rule which does not require compliance with the procedure prescribed by article 3112 must be struck down as invalid
It is now necessary to examine some of the cases on which the learned Addl
Solicitor General has 712 relied
In fact as we have already indicated his main argument was that some of the observations made in some of the decisions to which we will presently refer support his contention and logically lead to the conclusion that the impugned Rules are valid
That naturally makes it necessary for us to examine the said cases very carefully
In Satish Chandra Anand vs The Union of India1 this Court was dealing with the case of a person who had been employed by the Government of India on a five year contract in the Resettlement and Employment Directorate of the Ministry of Labour
When his contract was due to expire a new offer was made to him to continue him in service in his post temporarily for the period of the Resettlement and Employment Organization on the condition that he would be governed by the Central Civil Services Temporary Service Rules 1949
The relevant rule in that behalf authorised the termination of the contract on either side by one month s notice
Subsequently his services were terminated after giving him one month s notice
He challenged the validity of the said order but did not succeed for the reason that neither article 14 nor article 16 on which he relied really applied
This Court held that it is competent to the State to enter into contracts of temporary employment subject to the term that the contract would be terminated on one month s notice on either side
Such a contract was not inconsistent with article 3112
This case therefore is of no assistance in the present appeals
In Gopal Krishna Potnay vs Union of India  Anr
2 a permanent railway employee who was discharged from service after one month notice brought a suit challenging the validity of the order terminating his services
The point about the validity of the Rule was not agitated before the Court
Questions which were raised for the decision of the Court were inter alia whether the agreement in question lad been executed by the servant and whether the 1  2 AIR 1954 SC 632
713 termination of his services amounted to a discharge or not
In that connection reference was made to Rules 1504 and 1505 and it was held that the conduct of the parties showed that the termination of the servant s services was not more than a discharge in terms of the agreement
This case again is of no assistance
That takes us to the decision in the case of Shyam Lal vs The State of UP and the Union of India1 Shyam Lal s services were terminated under article 465 A of the Civil Service Regulations and Note I appended thereto
Shyam Lal alleged that his compulsory retirement offended the provisions of article 3112 on the ground that compulsory retirement was in substance removal from service
This Court considered the scheme of the relevant Rule and held that compulsory retirement did not amount to removal within the meaning of article 3112
In dealing with this question this Court observed that removal was almost synonymous with dismissal and that in the case of removal as in the case of dismissal some ground personal to the servant which was blameworthy was involved
There was a stigma attached to the servant who was removed and it involved a loss of benefit already earned by him
It is in the light of these tests that this Court held that compulsory retirement did not amount to removal
It is true that in dealing with the argument about the loss of benefit this Court observed that a distinction must be made between the loss of benefit already earned and the loss of prospect of earning something more and it proceeded to add that in the first case it is a present and certain loss and is certainly a punishment but the loss of future prospect is too uncertain for the officer may die of be otherwise incapacitated from serving a day long and cannot therefore be regarded in the eye of law as a punishment
It appears that in dealing with the point the attention of the Court was drawn to Rule 49 of the Civil Services Classification Control and Appeal Rules and presumably the explanation 1  713 termination of his services amounted to a discharge or not
In that connection reference was made to Rules 1504 and 1505 and it was held that the conduct of the parties showed that the termination of the servant s services was not more than a discharge in terms of the agreement
This case again is of no assistance
That takes us to the decision in the case of Shyam Lal vs The State of UP and the Union of India  Shyam Lal s services were terminated under article 465 A of the Civil Service Regulations and Note I appended thereto
Shyam Lal alleged that his compulsory retirement offended the provisions of article 3112 on the ground that compulsory retirement was in substance removal from service
This Court considered the scheme of the relevant Rule and held that compulsory retirement did not amount to removal within the meaning of article 3112
In dealing with this question this Court observed that removal was almost synonymous with dismissal and that in the case of removal as in the case of dismissal some ground personal to the servant which was blameworthy was involved
There was a stigma attached to the servant who was removed and it involved a loss of benefit already earned by him
It is in the light of these tests that this Court held that compulsory retirement did no amount to removal
It is true that in dealing with th argument about the loss of benefit this Court observe that a distinction must be made between the loss of benefit already earned and the loss of prospect of earning something more and it preceded to add that in the first case it is a present and certain loss and is certainly a punishment but the loss of future prospect is too uncertain for the officer may die or be otherwise incapacitated from serving a day longer and cannot therefore be regarded in the eye of the law as a punishment
It appears that in dealing with the point the attention of the Court was drawn to Rule 49 of the Civil Services Classification Control and Appeal Rules and presumably the explanation 1  714 to the said Rule to which we have already referred was taken into account in rejecting the argument a that a loss of future service cannot be said to be a relevant factor in determining the question as to whether compulsory retirement is removal or not
The judgment does not show that the invasion of the right which a permanent servant has to remain in service until he reaches the age of superannuation was pressed before the Court and naturally the same has not been examined
Confining itself to the special features of compulsory retirement which was effected under article 465 A and Note I appended thereto the Court came to the conclusion that compulsory retirement was not removal We may add that subsequent decisions show that the same view has been taken in respect of compulsory retirement throughout and so that branch of the law must be held to be concluded by the series of decisions to which we shall presently refer
We would however like to make it clear that the observation made in the judgment that every termination of service does not amount to dismissal or removal should in the context be confined to the case of compulsory retirement and should not be read as a decision of the question with which we are directly concerned in the present appeals
That problem did not arise before the Court in that case was not argued before it and cannottherefore be deemed to have been decided by this decision
Then we have a batch of four decisions reported in 1958 which are relevant for our purpose
In Hartwell Prescott Singh vs The Uttar Pradesh Government  Ors1 a civil servant held a post in a temporary capacity in the Subordinate Agriculture Service Uttar Pradesh and was shown in the gradation list as on probation
He was later appointed with the approval of the Public Service Commission of the United Provinces to officiate in Class II of the said Service
After about 10 years he was reverted to his original temporary appointment and his services were there after terminated under Rule 254 of the Subordinate 1  715 Agriculture Service Rules
Dealing with the said civil servant s objection that the termination of his services contravened article 3112 this Court held that reversion from a temporary post held by a person does not per se amount to reduction in rank
To decide whether the reversion is a reduction in rank the post held must be of a substantive rank and further it must be established that the order of reversion was by way of penalty
As we have already discussed the cases of temporary servants probationers and servants holding posts in officiating capacities stand on a different footing and the principles applicable to them are now firmly established and need not detain us
The next decision in the same volume is the State of Bombay vs Saubhagchand M Doshi1
This was a case of compulsory retirement under Rule 165 A of the Bombay Civil Services Rules as amended by the Saurashtra Government
In I so far as this case dealt with the compulsory retirement of a civil servant it is unnecessary to consider the Rule in question or the facts relating to the compulsory retirement of the civil servant
It is of interest to note that in dealing with the question as to whether compulsory retirement amounted to removal or not the tests which were applied were in regard to the loss of benefit already accrued and stigma attached to the civil servant
It is however significant that in considering the objection based on the contravention of article 3112 Venkatarama Aiyar J took the precaution of adding that questions of the said 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 regarded only as dismissal or removal within article 311 2
 It would be noticed that the rule providing 1 716 for compulsory retirement was upheld on the ground that such compulsory retirement does not amount to removal under article 3112 because it was another mode of retirement and it could be enforced only between the period of age of superannuation prescribed and after the minimum period of service indicated in the rule had been put in
If however no such minimum period is prescribed by the rule of compulsory retirement that according to the judgment would violate article 3112 and though the termination of a servant s services may be described as compulsory retirement it would amount to dismissal or removal within the meaning of article 3112
With respect we think that this statement correctly represents the true position in law
The third case in the said volume is the case of parshotam Lal Dhingra vs Union of India1 In this case Das CJ who spoke for the Bench considered comprehensively the scope and effect of the relevant constitutional provisions service rules and their impact on the question as to whether reversion of Dhingra offended the provisions of article 3112
Dhingra was appointed as a Signaller in 1924 and promoted to the post of Chief Controller in 1950
Both these posts were in Class III Service
In 1951 he was appointed to officiate in Class 11 Service as Asstt
Superintendent Railway Telegraphs
On certain adverse remarks having been made against him he was reverted as a subordinate till he made good the short comings
Then Dhingra made a representation
This was followed by a notice issued by the General Manager reverting him to Class III appointment
It was this order of reversion which was challenged by Dhingra by a writ petition
It would thus be seen that the point with which the Court was directly concerned was whether the reversion of an officiating officer to his permanent post constituted reduction in rank or removal under article 3112
The decision of this question was somewhat complicated by the fact that certain defects were noticed in the work of Dhingra 1  717 and the argument was that his reversion was in the nature of a penalty and so it should be treated as reduction under article 3112
This Court rejected Dhingra s contention and held that the reversion of an officiating officer to his substantive post did not attract the provisions of article 3112
Though the decision of the question which directly arose before this Court thus lay within a very narrow compass it appears that the matter was elaborately argued before the Court and the learned Chief Justice has exhaustively considered all the points raised by the parties
For our present purpose it is unnecessary to summaries the reasons given by the learned Chief Justice for holding that the reversion of Dhingra did not amount to reduction in rank
The only point which has to be considered by us is whether the observations made in the course of this judgment in regard to permanent servants assist the learned Addl
Solicitor General and if they do what is their effect Broadly stated this decision widened the scope of article 311 by including within its purview not only permanent servants but temporary servants and servants holding officiating posts also
The decision further held that dismissal removal and reduction represent the three major penalties contemplated by the relevant service rules and it is only where the
impugned orders partake of the character of one or the other of the said penalties that article 3112 can be invoked
In the course of his judgment the learned Chief Justice has referred to Rule 49 and the explanation attached thereto
The explanation to the Rule clearly shows that it refers to persons appointed on probation or persons holding temporary appointments and contractual posts
It is in the light of this explanation that the learned Chief Justice proceeded to examine the contention raised by Dhingra that his reversion amounted to reduction in rank and so it became necessary to examine whether any loss of benefit already accrued had been incurred or any stigma had been attached to the servant before he was reverted
It is in that connection that the Court also held that though a kind of enquiry may have 718 been held and the short comings in the work of Dhingra may have weighed in the mind of the authority who reverted him the said motive could not alter the character of reversion which was not reduction within the meaning of article 3112
All those points have been considered and decided and so far as the temporary servants probationers or contractual servants are concerned they are no longer in doubt
In regard to permanent servants the learned Chief Justice has made some observations which it is now necessary to consider very carefully
The appointment of a government servant to a permanent post observed the learned CJ may be substantive or on probation or on an officiating basis
A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a lien on the post
p 841 On the same subject the learned CJ has later added that in the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until under the rules he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years  service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct negligence inefficiency or any other disqualification found against him on proper enquiry after due notice to him p 843
Reading these two observations together there can be no doubt that with the exception of appointments held under special contract the Court took the view that wherever a civil servant was appointed to a permanent post substantively he had a right to hold that post until he reached the age of superannuation or was compulsorily retired or the post was abolished
In all other cases if the services of the said servant were terminated they would have to be in conformity with the provisions of article 3112 because termination in such cases amounts to removal
The two statements of the law to which we have just 719 referred do not leave any room for doubt on this point
Later during the course of the judgment learned CJ proceeded to examine Rule 49 and the explanations added to it and then reverting to the question of permanent servants once again he observed that it has already been said that where a person is appointed substantively to a permanent post in Government service he normally acquires a right to hold the post until under the rules he attains the age of superannuation or is compulsorily retired and in the absence of a contract express or implied or a service rule he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct negligence inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with article 3112
Termination of service of such a servant so appointed must per se be a punishment for it operates as a forfeiture of the servant s rights and brings about a premature end of his employment pp 857 58
With respect we ought to point out that though the learned C J at this place purports to reproduce what had already been stated in the judgment he has made two significant additions because in the present statement he refers to a contract or service rules which may permit the authority to terminate the services of a permanent servant without taking the case under article 3112 though such termination may not amount to ordinary or compulsory retirement
The absence of contract express or implied or a service rule which has been introduced in the present statement are not to be found in the earlier statements to which we have already referred and addition of these two Clauses apparently is due to the fact that the learned CJ considered Rule 49 and the explanations attached thereto and brought them into the discussion of a permanent servant and that we venture to think is not strictly correct
As we have already seen Explanation No 1 to R 49 is confined to the through categories of officers specified by it in its clauses a 720 b and c and it has no relevance or application to the cases of permanent servants
Similarly the same statement is repeated with the observation as already stated if the servant has got a right to continue in the post then unless the contract of employment or the rules provide to the contrary his services cannot be terminated otherwise than for misconduct negligence inefficiency or other good and sufficient cause
A termination of the service of such a servant on such grounds must be a punishment and therefore a dismissal or removal within article 31 1 for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances p 862
With respect we wish to make the same comment about this statement which we have already made about the statement just cited
In this connection it may be relevant to add that in the paragraph where this statement occurs the learned CJ was summing up the position and the cases there considered are cases of Satish Chandra Anand 1 and Shyam Lal2
These two cases were concerned with the termination of a temporary servant s services and the compulsory retirement of a permanent servant respectively and strictly speaking they do not justify the broader proposition enunciated at the end of the paragraph
At the conclusion of his judgment the learned CJ has observed that in every case the Court has to apply the two tests mentioned above namely 1 whether the servant had a right to the post or the rank or 2 whether he has been visited with evil consequences of the kind hereinbefore referred to p 863 It would be noticed that the two tests are not cumulative but are alternative so that if the first test is satisfied termination of a permanent servant s services would amount to removal because his right to the post has been prematurely invaded
The learned CJ himself makes it clear by adding 1  2  721
that if the case satisfies either of the two tests the it must be held that the servant had been punished and the termination of his services must be held to be wrongful and in violation of the constitutional rights of the servant
It would thus be noticed that the first test would be applicable to the cases of permanent servants whereas the second test would be relevant in the cases of temporary servants probationers and the like
Therefore we do not think the learned Addl
Solicitor General is justified in contending that all the observations made in the course of this judgment in regard to permanent servant considered together support his contention
Besides if we may say so with respect these observations are in the nature of obiter dicta and the learned Add1 Solicitor General cannot rely solely upon them for the purpose of showing that R 1483 or R 1493 should be held to be valid as a result of the said observations
The last decision on this point rendered by this Court in 1958 vide P Balakotaiah vs The Union of India  Others1 dealt with the case of Balakotaiah who was a permanent railway servant and whose services had been terminated for reasons of national security under section 3 of the Railway Services Safe guarding of National Security Rules 1949It appears that in this case Balakotaiah who challenged the order terminating his services before the High Court of Nagpur failed because the High Court held that the said order was justified under Rule 1483 of the Railway Rules
In his appeal before this Court it was urged on his behalf that the High Court was in error in sustaining the impugned order under the said Rule when the Union of India had not attempted to rely on the said Rule and the impugned order did not purport to have been passed under it
The argument was that the impugned order had been passed under R 3 of the Security Rules and the High Court should have considered the matter by reference to the said Rule and not to R 1483
This plea was 1  1SCI64 46 722 upheld by this Court and so Balakotaiah s challenge to the validity of the impugned order was examined by reference to security rule 3
The scheme of the relevant Security Rules was then considered by this Court and it was held that the said Rules did not contravene either article 14 or article 191c of the Constitution as contended by the appellant
Having held that the impugned rule was not unconstitutional this Court proceeded to examine the further contention that the procedure prescribed by the said rules for hearing of the charges does not satisfy the requirement of article 311 and as such the said Rules are invalid
Rules 3 4 and 5 of the Security Rules which dealt with this point do contemplate some kind of an enquiry at which an opportunity is given to the railway servant concerned to show cause against the action proposed to be taken against him
Rule 7 also provides that a person who is compulsorily retired or whose service is terminated under Rule 3 shall be entitled to such compensation pension gratuity andor Provident Fund benefits as would have been admissible to him under the Rules applicable to his service if he had been discharged from service due to the abolition of his post without any alternative suitable employment being provided
The contention was that the nature of the enquiry contem plated by the relevant Rules did not satisfy the re quirements of article 3112 and so the Rules should be struck down as being invalid and the order terminating the services of Balakotaiah should therefore be held to be invalid
This argument was rejected by this Court and relying upon the earlier decisions in the cases of Satish Chandra Anand1 Shyam Lal2 Saubhagchand M Doshi3 and Parshotam Lal Dhingra 4 it was held that the order terminating the services of the railway employee which can be 1  3  2  4  723 passed under R 3 is not an order of dismissal or removal and so article 3112 is inapplicable
On that view the validity of R 3 was sustained
In recording its conclusion on this point this Court observed that the order terminating the services under R 3 stands on the same footing as an order of discharge under Rule 148 and it is neither one of dismissal nor of removal within the meaning of Art 311
Naturally the learned Addl
Solicitor General relies on this statement of the law
In appreciating the effect of this observation it is necessary to bear in mind that in the earlier portion of the Judgment this Court has specifically referred to the argument that the Security Rules had an independent operation of their own quite apart from Rule 148 and has observed that the Court did not desire to express any final opinion on that question as Mr Ganapathy Iyer is willing that the validity of the orders in question might be determined on the footing that they were passed under R 3 of the Security Rules without reference to R 148
That renders it necessary to decide whether the Security Rules are unconstitutional as contended by the appellant
 It would thus be noticed that having upheld the contention of the appellant Balakotaiah that the High Court was in error in referring to and relying upon R 1483 for the purpose of sustaining the impugned order terminating his services this Court had naturally no occasion to consider the validity the effect or the applicability of the said Rule to the case before it and so the attention of the Court centered round the question as to whether the relevant security rule was valid and whether it justified the order passed against the appellant
In dealing with this aspect of the matter this Court no doubt came to the conclusion that the termination of Balakotaiah s services under R 3 did not amount to his removal or dismissal but since no argument was urged before the Court in respect of R 1483 the reference to the said Rule made by the judgment is purely in the nature of an obiter and so we are not prepared to 724 read that statement as a decision that R 1483 is valid
To read the said statement in that manner would be to ignore the fact that this Court had reversed the conclusion of the High Court that the impugned order was valid under R 1483 specifically on the ground that case had not been made out by the Union of India and should not have been adopted by the High Court
It is thus clear that as the case was argued before this Court and considered R 1483 was outside the controversy between the parties
That is why it would be unreasonable to rely on the reference to R 148 in the statement made in the judgment on which the learned Addl
Solicitor General relies
There is another aspect of this question to which we may incidentally refer before we part with this case
We have already quoted the observation of Veinkatarama Aiyar J in the case of Subhagchand M Doshi 1 to the  effect that if compulsory retirement is permitted by any service rule without fixing the minimum period of service after which the Rule can be invoked termination of the services of a permanent civil servant by the application of such a Rule would be dismissal or removal under article 3112 and we have indicated that we regard that statement as correctly representing the true legal position in the matter
It appears that when this Court decided the case of Balakotaiah this aspect of the matter was not argued before the Court and the observation to which we have just referred was not brought to its notice
One more case which still remains to be considered in this context is the decision in Dalip Singh vs The State of Punjab 2
In this case Dalip Singh was compulsorily retired from service by the Rajpramukh of Pepsu exercising his power under Rule 278 of the Patiala State Regulations 1931
In the quit from which the appeal before this Court arose he alleged that the order of retirement passed against him amoun 1  2 725 ted to his dismissal and so he claimed to recover Rs 26699 13 0 on that basis
The validity of R 278 was not put in issue in the proceedings at any stage
The only point raised was that the said Rule was not applicable to his case and it was urged that in the circumstances the order was an  order of dismissal
This Court
held that R 278 applied to the case And so the preliminary objection against the applicability of the Rule was rejected
Dealing with the main contention raised before this Court that the compulsory retirement of Dalip Singh was removal from service within the meaning of article 3112 this Court applied the tests laid down in the case of Shyam Lal1 and Saubhagchand Doshi2 and held that the said retirement did not amount to removal
Dalip Singh had not lost the benefit which he earned and though considerations of alleged misconduct or inefficiency may have weighed with the Government in compulsorily retiring him that did not affect the character of the orderin fact full pension had been paid to the officer and so it was held that the order of retirement is clearly not by way of punishment
At the end of this judgment this Court added that the observations made in the case of Doshi2 which we have already cited should not be read as laying down the law that retirement under R 278 would be invalid for the reason that a minimum period of service had not been prescribed before the said Rule could be enforced against the civil servant
It would be recalled that in the case of Doshi2 Venkatarama Aiyar J had observed that if the two periods are not prescribed one for superannuation and the other for enforcing the rule of compulsory retirement compulsory retirement of the officer would amount to dismissal or removal under article 3112
In Dalip Singh s case 2 it was stated that the said observation should not be taken to have laid down any rule of universal application in that behalf
The 1 1955 1 SCR 26 2 1958 1 SCR 3 726 learned Addl
Solicitor General has naturally relied on these observations
It is however necessary to point out that the said observations were made on the assumption that the Patiala Rules did not lay down any minimum period of service which had to be put in by civil servant before he could be compulsorily retired under Rule 278
We have already seen that the validity of R 278 was not challenged before the Court in Dalip Singh s case besides we have now been referred to the relevant Patiala Rules and it appears that the combined operation of Rules 53 54 125 236 239 240 243 and 278 would tend to show that no officer could have been compulsorily retired under R 278 unless he had put in at least 12 years  service
We are referring to this aspect of the matter for the purpose of showing that the assumption made by this Court in making the observations to which we have just referred may not be well founded in fact
Apart from that we think that if any Rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service that Rule would be invalid and the so called retirement ordered under the said Rule would amount to removal of the civil servant within the meaning of article 3112
At this stage we ought to make it clear that in the present appeals we are not called upon to consider whether a rule of compulsory retirement would be valid if having fixed a proper age of superannuation it permits a permanent servant to be retired at a very early stage of his career
We have referred to the decisions dealing with cases of compulsory retirement only for the purpose of ascertaining the effect of the obiter observations made in some of those decisions in relation to the question with which we are directly concerned
The question raised by the orders of compulsory retirement so far as it is covered by the said decisions must be deemed to be concluded
Our conclusion therefore is that rules 127 1483 and 1493 which permit the termination of a permanent railway servant s services in the manner provided by them are invalid because the termination of services which the said Rules authorise is removal of the said railway permanent servant and it contravenes the constitutional safeguard provided by article 3112
After this Court pronounced its decision in the case of Shyam Lal1 the question about the validity of Rule 1483 has been considered by several High Courts and it must be conceded that with the exception of two decisions of the Calcutta High Court in Union of India vs Someswar Banerjee2 and Fakir Chandra Chiki vs section Chakravarti  Ors3 which have held that R 1709 and R 1483 of the Railway Rules are respectively invalid the consensus of judicial opinion is in favour of the contention raised by the learned Add1
Solicitor General
These decision have held that R 1483 is constitutionally valid vide Biswanath Singh vs District Traffic Supdt
 NE Railway Sonepur4 The Union of India vs Askaran 5 Hardwari Lal vs General Manager North Eastern Railway Gorakhpur6 and Anr Kishan Prasad vs The Union of India 7 and DS Srinath vs General Manager Southern Railway Madras8
In fairness we ought to add that all these decisions proceeded on the basis that the observations made by this Court either in the case of Shyam Lal 1 or in the case of Dhingra9 in respect of permanent servants amounted to a decision on that point and were therefore binding on the High Courts
Some decisions purport to adopt the said observations and extend them logically in dealing with the question about the validity of Rule 1483
With respect we must hold that these decisions do not correctly represent the true legal position in regard to the character of R 1483
1  3 AIR 1954 Cal
5 AIR 1957 Rajastban 836
7 AIR 1960 Cal
2 AIR 1954 Cal
4 AIR 1956 Patna 221 6 AIR 1959 All 439
8 AIR 1962 Mad 379
9  728 There is still one more point which must be considered and that is the challenge to the validity of Rules 1483 and 1493 on the ground that they contravene article 14 of the Constitution
The pleadings on this part of the case filed by both the parties are not very satisfactory but as to the broad features of the Rules on which the challenge rests there is no serious dispute
We have already seen the Rules it is urged that they purport to give no guidance to the authority which would operate the said Rules
No principle is laid down which should guide the decision of the authority in exercising its power under the said Rules
Discretion is left in the authority completely unguided in the matter and the Rules are so worded that the power conferred by them can be capriciously exercised without offending the Rules
It is also not disputed by the learned Addl
Solicitor General that no other branch of public services either under the States or under the Union contains any rule which corresponds to the impugned Rules
Therefore basing themselves on these two features of the impugned Rules it is argued by the Railway employees before us that the Rules offend article 14
In support of the first argument it is suggested that though the impugned Rule may not in terms enact a discriminatory rule and in that sense may not patently infringe article 14 it may nevertheless contravene the said article if it is so framed as to enable an unequal or discriminatory treatment to be meted out to persons or things similarly situated and in support of this point reliance is placed on the decision of this Court in Jyoti Pershad vs The Administrator for the Union Territory of Delhi1
Such a result it is said would inevitably follow where the rule vests a discretion in an authority as an executive officer and does not lay down any policy and fails to disclose any tangible intelligible or rational purpose which the power conferred by it is intended to serve
1  at P 137
729 On the other hand the Addl
Solicitor General has contended that the very purpose of the Rule gives guidance to the appropriate authority exercising its power under it in exercising the said power the appropriate authority will have to take into account all the relevant circumstances in regard to the nature and quality of the work of the railway servant in question and will have to decide whether there are circumstances which require that the services of the said servant should be terminated
In dealing with such a question it is plain that the appropriate authority would naturally have regard for consideration of public interest and the interest of the Railway Administration
Therefore it is suggested that the Rule cannot be struck down on the ground that it confers absolute unguided and uncanalised power on the appropriate authority
Since we have come to the conclusion that the second attack made against the validity of the Rule under article 14 ought to be sustained we do not propose to express any opinion on this part of the controversy between the parties
The other aspect of the matter arises from the fact that no other branch of public service contains such a rule for its civil servants
The true scope and effect of article 14 has been considered by this Court on several occasions
It may however be sufficient to refer to the decision of this Court in Shri Ram Krishna Dalmia vs Shri Justice SR Tendolker  Ors1 After examining the Article and the relevant decisions of this Court bearing on it Das CJ who spoke for the Court stated the position in the form of propositions a to f
Propositions a and are relevant for our purpose
The decisions of this Court establish said Das CJ a that a law may be constitutional even though it relates to a single individual if on account of some special circumstances or reasons applicable to him and not applicable to others that single individual may be treated as a class by himself and f that while good faith and knowledge of the existing conditions on the part 1  at P 297
730 of a legislature are to be presumed if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on Which the classification may reasonably be regarded as based the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation
 Applying these two principles it is difficult to understand on what ground employment by the Railways alone can be said to constitute a class by itself for the purpose of framing the impugned Rules
If considerations of administrative efficiency or exigencies of service justify the making of such a rule why should such a Rule not have been framed in the Posts  Telegraph Department to take only one instance
The learned Additional Solicitor Generaf frankly conceded that the  affidavits filed by the Railway Administration or the Union of India afforded no material on which the framing of the Rule only in respect of one sector of public service can be justified
We appreciate the argument that the nature of services rendered by employees in different sectors of public service may differ and the terms and conditions governing employment in all public sectors may not necessarily be the same or uniform but in regard to the question of terminating the services of a civil servant after serving him with a notice for a specified period we are unable to see how the Railways can be regarded as constituting a separate and distinct class by reference to which the impugned Rule can be justified in the light of article 14
If there is any rational connection between the making of such a Rule and the object intended to be achieved by it that connection would clearly be in existence in several other sectors of public service
What has happened is that a provision like R 1483 pr R 1493 was first made by the Railway Companies when employment with the Railways was a purely commercial matter governed by the ordinary rules of contract
After the Railways were taken over by the State that position has essen 731 tially altered and so the validity of the Rule is now exposed to the challenge under article 14
Therefore we are satisfied that the challenge to the validity of the impugned Rules on the ground that they contravene article 14 must also succeed
There is one more point which we ought to mention before we part with these appeals
In dealing with the validity of R 149 Nayudu J of the Assam High Court who has delivered the minority judgment in the case of Shyam Behari Tewari  Ors V Union of India  Anr1 has observed that the Rule would be invalid for the additional reason that it purports to give power to the Railway Administration to terminate the services of any person in permanent employment in railway service on notice at the sweetwill and pleasure of the Railway Administration Such a power said the learned Judge can only be exercised by the President in the instant cases where the service is under the Union and not by any other whereas the Rule in question purports to give that power to the Railway Administration
In support of this conclusion the learned Judge has relied on the observations made in the majority judgment delivered by this Court in The State of Uttar Pradesh and ors 2 vs Babu Ram Upadhya
We ought to point out that the learned Judge has misconstrued the effect of the observations on which he relies
What the said Judgment has held is that while article 310 provides for a tenure at pleasure of the President or the Governor article 309 enables the legislature or the executive as the case may be to make any law or rule in regard inter alia to conditions of service without impinging upon the overriding power recognised under article 310
In other words in exercising the power conferred by article 309 the extent of the pleasure recognised by article 310 cannot be affected or impaired In fact while stating the conclusions in the form of propositions the said judgment has observed that the Parliament or the Legislature can make a law regulating the conditions of service without affecting 1 AIR 1963 Assam 94 2 732 the powers of the President or the Governor under article 310 read with article 311
It has also been stated at the same place that the power to dismiss a public servant at pleasure is outside the scope of article 154 and therefore cannot be delegated by the Governor to a subordinate officer and can be exercised by him only in the manner prescribed by the Constitution
In the context it would be clear that this latter observation is not intended to lay down that a law cannot be made under article 309 or a Rule cannot be framed under the proviso to the said Article prescribing the procedure by which and the authority by whom the said pleasure can be exercised
This observation which is mentioned as proposition number 2 must be read along with the subsequent propositions specified as 3 4 5  6
The only point made is that whatever is done under article 309 must be subject to the pleasure prescribed by article 310
Naidu J was therefore in error in holding that the majority decision of this Court in the case of Babu Ram Upadhya1 supported his broad and unqualified conclusion that R 1493 was invalid for the sole reason that the power to terminate the services had been delegated to the Railway Administration
In the result the four appeals in the first group succeed and are allowed
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
The appellants would be entitled to their costs from the respondents
The three appeals in the second group fail and are dismissed with costs
One set of hearing fees in each group
SUBBA RAO J I agree that the impugned rules infringe both article 14 and article 3112 of the Constitution and are therefore void
On 1 article 14 1 have nothing more to say
But on the impact of the said rules on article 311 of the Constitution I would prefer to give my own reasons
The short but difficult question is whether 148 of the Indian Railway Establishment Code 1  733 Vol 1 1951 and r 149 of the revised edition of the said Code of the year 1959 replacing r 148 of the Code of 1951 edition impinge upon the constitutional safeguard given to a person holding a civil post under the Union Government under article 3112 of the Constitution
While article 3112 of the Constitution prohibits the State from dismissing or removing or reducing in rank a civil servant until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him rr 148 and 149 of the said Code in effect enable the Government to terminate his services after issuing the prescribed notice thereunder  Prima facie the said rules are in conflict with article 3112 of the Constitution
Broadly stated the contention of the State is that a Union civil servant holds his office during the pleasure of the President that article 311 is not really a limitation on the exerciseof that pleasure that it only prescribes safeguards against the imposition on him of three unmerited specified penalties viz dismissal removal and reduction in rank and that the termination of his services for a reason other than misconduct personal to the civil servant is not comprehended by any of the said penalties
The further argument is that the doctrine of pleasure implies that a civil servant has no right to an office even in a case where he has a substantive lien on a post and that in any event he has none when there is a specific rule that his services can be terminated after the prescribed notice
This Bench of seven Judges has been constituted to steer clear of conflicting observations if any found in the judgments of this Court and to arrive at a conclusion of its own unhampered by such observations
I would therefore proceed to consider the relevant provisions in accordance with the natural tenor of the expressions used therein and then to scrutinize whether any of my conclusions would be in conflict with any of the decisions of this Court
At the outset I must make it clear that I propose to confine my discussion only to the question of termi 734 nation of services of a permanent civil servant
None of the observations I may make is intended to have any bearing on the question of termination of the services of other categories of servants
As the argument of the learned Additional Soli citor General is based upon the doctrine of pleasure it would be convenient at the outset to ascertain the precise scope of the doctrine in the context of the Indian Constitution
Article 309 is subject to the provisions of the Constitution and therefore is subject to article 310 thereof Article 311 imposes two limitations on the doctrine of pleasure declared in article 310
The gist of the said provisions is this Under article 309 of the Constitution the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or any State and until provision in that behalf is made the President or such person as he may direct may make rules regulating the recruitment and conditions of service of persons appointed to the said services and posts in connection with the affairs of the Union
In its ordinary meaning the expression conditions of service takes in also the tenure of a civil servant
Under article 310 such a civil servant holds office during the pleasure of the President but article 311 imposes two conditions to be satisfied before a civil servant can be dismissed or removed or reduced in rank namely i he shall not be dismissed removed or reduced in rank by an authority subordinate to that by which he was appointed and ii he shall be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him
A combined reading of these provisions indicates that the rules made under article 309 are subject to the doctrine of pleasure and that the doctrine of pleasure is itself subject to two limitations imposed thereon under article 31 1
This tenure at pleasure is a concept borrowed from English law though it has been modified to suit the Indian conditions
735 The English law on the doctrine of tenure at pleasure has now become fairly crystallized
Under the English law all servants of the Crown
hold office during the pleasure of the Crown
The right to dismiss at pleasure is an implied term in every contract of employment under the Crown
This doctrine is not based upon any prerogative of the Crown but on public policy
If the terms of appointment definitely prescribe a tenure for good behavior or expressly provide for a power to determine for a cause such an implication of a power to dismiss at pleasure is excluded and an Act of Parliament can abrogate or amend the said doctrine of public policy in the same way as it can do in respect of any other part of common law
see The State of UP vs Babu Ram Upadhya 1
Section 96 B of the Government of India Act 1915 for the first time in 1919 by an amendment statutorily recognized this doctrine but it was made subject to a condition that no person in the service might be dismissed by an authority subordinate to that by which he was appointed
Section 240 of the Government of India Act 1935 imposed another limitation namely that a reasonable opportunity of showing cause against the action proposed to be taken in regard to a person must be given to him
But neither of the two Acts empowered the appropriate Legislature to make a law abolishing or amending the said doctrine
The Constitution of India practically incorporated the provisions of section 240 and section 241 of the Government of India Act 1935 in articles 309 and 310
The English doctrine has been enlarged in one direction and restricted in another while Parliament has no power to deprive the President of his pleasure the said pleasure is made subject to two limitations embodied in article 311
The English concept is considerably modified to suit the conditions of our country
It is therefore not correct to say that article 311 is not a limitation on the power of the President to terminate the services of a Union civil servant at his pleasure
To accept the argument that the 1   696 736 relevant expression in article 311 shall be so construed as to give full sway to the doctrine is to ignore the limitations on that doctrine
Both article 310 and article 311 shall be read together and if so read it is manifest that the said doctrine is subject to the said two conditions
What is the scope of the relevant words dismissed and removed  in article 311 of the Constitution The general rule of interpretation which is common to statutory provisions as well as to constitutional provisions is to find out the expressed intention of the makers of the said provisions from the words of the provisions themselves
It is also equally well settled that without doing violence to the language used a constitutional provision shall receive a fair liberal and progressive construction so that its true objects might be promoted
Article 311 uses two well known expressions dismissed and removed
The Article does not expressly or by necessary implication indicate that the dismissal or removal of a Government servant must be of a particular category
As the said Article gives protection and safeguard to a Government servant who will otherwise be at the mercy of the Government the said words shall ordi narily be given a liberal or at any rate their natural meaning unless the said Article or other Articles of the Constitution expressly or by necessary implication restrict their meaning
I do not see any indication anywhere in the Constitution which compels the Court to reduce the scope of the protection
The dictionary meaning of the word dismiss is to let go to relieve from duty
The word  remove   means to discharge to get rid off to dismiss
In their ordinary parlance therefore the said words mean nothing more or less than the termination of a person s office
The effect of dismissal or removal of one from his office is to discharge him from that office
In that sense the said words comprehend every termination of the services of a Government servant
Article 3112 in effect lays down that before the services of a Government servant are so terminated 737 he must be given a reasonable opportunity of showing cause against such a termination
There is no justification for placing any limitation on the said expressions such as that the dismissal or removal should have been the result of an enquiry in regard to the Government servant s misconduct
The attempt to imply the said limitation is neither warranted by the expressions used in the Article or by the reason given namely that otherwise there would be no point in giving him an opportunity to defend himself If this argument the correct it would lead to an extraordinary result namely that a Government servant who has been guilty of misconduct would be entitled to a reasonable opportunity whereas an honest Government servant could be dismissed without any such protection
In one sense the conduct of a party may be relevant to punishment ordinarily punishment is meted out for misconduct and if there is no misconduct there could not be punishment
Punishment is therefore correlated to misconduct both in its positive and negative aspects
That is to say punishment could be sustained if there was misconduct and could not be meted out if there was no misconduct
Reasonable opportunity given to a Government servant enables him to establish that he does not deserve the punishment because he has not been guilty of misconduct
That apart a Government servant may be removed or dismissed for many other reasons such as retrenchment abolition of post compulsory retirement and others
If an opportunity is given to a Government servant to show cause against the proposed action he may plead and establish that either there was no genuine retrenchment or abolition of posts or that others should go before him
Now let me see whether the history of this constitutional provision countenances any such limitation on the meaning of the said expressions
As we have already noticed the concept of tenure at pleasure was first introduced in the Government of India Act 1919
Under section 96 B of that Act 1SCI64 47 738 1 Subject to the provisions of this Act and of rules made thereunder every person in the civil service of the Crown in Ind ia holds office during His Majesty s pleasure and may be employed in any manner required by a proper authority within the scope of his duty but no person in that service may be dismissed by any authority subordinate to that by which he was appointed  It will be seen that under this section the said concept was introduced subject to a condition it may also be noticed that the section used only one word dismissed
In England under that doctrine services of a Government servant whether he is a permanent or a temporary servant can be terminated without any cause whether he is guilty of misconduct or not
Therefore when the word dismissed is used in section 96 B of the Act in the context of the exercise of His Majesty s pleasure that word must have been used in the natural meaning it bears ie terminated
But that section was subject to the provisions of the rules made under that Act
In exercise of the power conferred under the Act on the Secretary of State for India in Council he framed certain rules in December 1920 and with subsequent modifications they were published on May 27 1930
The said rules were designated as the Civil Services Classification Control and Appeal Rules
Rule 49 of those Rules provided for certain penalties and cl
6 thereof dealt with Removal from the civil service of the Crown which does not disqualify from future employment and cl
7 provided for dismissal from the civil service of the Crown which ordinarily disqualified from future employment
The explanation to that rule read thus The termination of employment a of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the appointment and the rules governing the probationary service or 739 b of a temporary Government servant appointed otherwise than under contract in accordance with rule 5 of the Central Civil Services Temporary Service Rules 1949 or c of a person engaged under a contract in accordance with the terms of his contract does not amount to removal or dismissal within the meaning of this rule or of rule 55
 The explanation makes it clear that the three specified categories of termination covered by the explanation would amount to dismissal or removal but for the explanation
That is to say the expression termination is synonymous with the term dismissal or removal
Rule 55 of the Rules provided a machinery for dismissing or removing or reducing in rank a Government servant he should be given thereunder an adequate opportunity to defend himself
Then came the Government of India Act 1935
In section 240 thereof the expression used was dismissed and that term in the context of the exercise of His Majesty s pleasure could have meant only termination of services though in view of the explanation to r 49 of the Rules quoted above the three specified categories of termination mentioned in the explanation might by construction be excluded from the natural meaning of the word dismissal
Then we come to article 311 of the Constitution which with certain modifications incorporated the provisions of section 240 of the Government of India Act 1935
It introduced the expression removed in addition to the word dismissed presumably inspired by rr 49 and 55 of the Rules
The natural meaning of the said terms takes in every act of termination of service but if construed with the help of r 49 of the Rules their meaning may be cut down by excluding the three categories of termination covered by the explanation in the manner prescribed therein
If the termination was otherwise than that prescribed therein it would still be dismissal or removal
If so the history of the constitutional provisions may 740 lead to the conclusion that though the words dismissed and removed are words of widest connotation namely termination of service of any category held under the Union they were used in the limited sense they bear in r 49 of the Rules that is to say termination of employment excluding the three categories mentioned in the explanation
So far the words removed and dismissed are concerned r 49 shows that there is no appreciable difference between the two except in the matter of future employment and article 31 1 presumably copied the two words from r 49
Therefore whether the natural and dictionary meanings of the words dismissal and removal were adopted or the limited meanings given to those words by r 49 were accepted the result so far as a permanent employee was concerned would be the same namely that in the case of termination of services of a Government servant outside the three categories mentioned in the explanation it would be dismissal or removal within the meaning of article 311 of the Constitution with the difference that in the former the dismissed servant would not be disqualified from future employment and in the latter ordinarily he would be disqualified from such employment
If so it follows that if the services of a permanent Government servant which fall outside the three categories mentioned in the explanation were terminated he would be entitled to protection under article 3112 of the Constitution
With this background let me now scrutinise the leading judgment of this Court on the subject namely Parshotam Lai Dhingra vs Union of India 1
That was a case of reversion of a Government servant who was officiating in Class 11 Service as Assistant Superintendent Railway Telegraphs to his substantive post in Class III Service
This Court speaking through Das CJ gave an exhaustive treatment to the scope of article 3112 of the Constitution parti 11958 SCR 828
741 cularly with reference to the meaning of the expressions dismissed removed or reduced in rank found therein
A careful reading of the judgment shows that this Court has heavily relied upon r 49 of the Civil Services Classification Control and Appeal Rules and its explanation and attempted to give a legal basis for the said provisions
On that basis having considered the different aspects of the problem the Court has laid down the following two tests at p 863 to ascertain whether a person is dismissed or removed within the meaning of article 311 of the Constitution 1 Whether the servant had a right to the post or the rank or 2 whether he has been visited with evil consequences of the kind hereinbefore reference to ie loss of pay and allowances loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion If an officer had a right to a post or rank and if the termination of his services deprived him of that right the said termination would be dismissal or removal as punishment
So too if the termination had the effect of the officer being visited with evil consequences then whatever may be the phraseology used for putting an end to his services it would be dismissal as punishment
The motive operating on the mind of the authority concerned or the machinery evolved or the method adopted to put an end to his services are not relevant in considering the question whether he was dismissed if he had a right to the office or if he had been visted with evil consequences though the said circumstances may have some relevance as other decisions of this Court disclose in ascertaining whether he was discharged with a stigma attached to him
While conceding that this decision does not in terms specifically lay down that even in the case of a person holding a permanent post if there was an appropriate term in the conditions of service that his services could be terminated by notice article 311 of the Constitution would not be attracted it is contended that raison d etre of the decision and some passages therein lead to that conclusion
Some of the passages relied upon may be extracted 742 At pp
857 858 It has already been said that where a person is appointed substantively to a permanent post in Government service he normally acquires a right to hold the post until under the rules he attains the age of superannuation o r is com pulsorily retired and in the absence of a contract express or implied or a service rule he cannot be turned out of his post unless he is guilty of misconduct negligence inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with article 3112
 At p 862 As already stated if the servant has got a right to continue in the post then unless the contract of employment or the rules provide to the contrary his services cannot be terminated otherwise than for misconduct negligence inefficiency or other good and sufficient cause
 These passages certainly lend support to the argument of the learned counsel but the qualifying clauses on which reliance is placed are only incidental observations
The main principles relevant to the present enquiry were laid down by the Court clearly and precisely at p 860 thus Shortly put the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment express or implied or under the rules governing the conditions of his service the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto The following observation further pinpoints the principle One test for determining whether the termi nation of the service of a government servant 743 is by way of punishment is to ascertain whether the servant but for such termination had the right to hold the post This decision therefore clearly lays down without any ambiguity that if a person has a right to hold office under the service rules or under a contract the termination of his services would attract Art 311 of the Constitution
It also lays down that a person holding a substantive lien on a permanent post has a right to such office
It does not say expressly or by necessary implication that even if a person is deprived of such a right it will not be punishment unless it is inflicted for misconduct in the manner prescribed by the service rules
Learned Additional Solicitor General further relied upon the decisions of this Court holding that a rule empowering the Government to compulsorily retire a permanent Government servant before that age of superannuation did not violate article 311 of the Constitution and contended that on parity of reasoning the impugned rules should likewise be valid
It was asked with considerable force what relevant distinction there could be between the said two categories of rules in the context of the question whether the termination of services was dismissal or not within the meaning of article 311 of the Constitution In the case of a Government servant the argument proceeded in either case he was deprived of his title to office and therefore both cases were equally covered by the principle laid down in Dhingra s case1
This argument certainly deserves serious consideration
The relevant rules pertaining to compulsory retirement of a permanent Government servant considered by this Court in the various decisions relied upon by learned counsel may now be noticed
In Shyam Lal s case 2 which is the sheet anchor of the appellants  argument the rule under consideration was Note 1 to article 465 A of the Civil Services Regulations
The said Note read 1  2  744 Government retains an absolute right to retire any officer after he has completed twenty five years qualifying service without giving any reasons and no claim to special compensation on this account will be  entertained
This right will not be exercised except when it is in the public interest to dispense with the further services of an officer
 The rule considered in The State of Bombay vs Saubhagchand M Doshi 1 was r 165 A of the Bombay Civil Services Rules applicable to the State of Saurashtra and it read Government retains an absolute right to re tire any Government servant after he has com pleted 25 years qualifying service or 50 years of age whatever the service without giving any reason and no claim to special compensation on this account will be entertained
This right will not be exercised except when it is in the public interest to dispense with the further services of a Government servant such as on account of inefficiency or dishonesty
 Rule 3 of the Railway Services Safeguarding of National Security Rules 1949 was under consideration in Balakotaiah vs The Union of India2 and it read A member of the Railway Service who in the opinion of the competent authority is engaged in or is reasonably suspected to be engaged in subversive activities or is associated with others in subversive activities in such manner as to raise doubts about his reliability may be compulsorily retired from service or have his service terminated by the competent authority after he has been given due notice or pay in lieu of such notice in accordance with the terms of his service agreement Provided that a member of the Railway Service shall not be retired or have his service so terminated unless the competent authority is satisfied that his retention in public service is prejudicial to national security and unless 1  2  745 where the competent authority is the Head of a Department the prior approval of the Governor General has been obtained In Union of India vs Jeewan Ram1 this Court had to consider sub rr
3 and 4 of r 148 of the Indian Railway Establishment Code Vol 1
The rule which was under scrutiny in Dalip Singh vs The State Punjab2 was r 278 of the Patiala State Regulations which read For all classes of pensions the person who desires to obtain the pension is required to submit his application before any pension is granted to him
The State reserves to itself the right to retire any of its employees on pension on political or on other reasons
 The cases of Shyam Lal and Doshi were decided before Dhingra s case and the cases of Dalip Singh and Balakotaiah after Dhingra section In all the cases under the relevant rules the age of superannuation was fixed but the order of compulsory retirement was made before the Government servant reached the age of superannuation
The rule in Shyam Lal s case ex facie declares that the right will not be exercised except when it is in the public interest to dispensed with the further services of an officer indicating thereby that the compulsory retirement is imposed as punishment for some sort of dereliction of duty on his part and therefore the termination of service under that rule necessarily carries a stigma with it
The rule in Doshi s case3 iS more emphatic than that in Shyam Lal s case the rule in Doshi s case elaborate what is implicit in the rule considered in Shyam Lal s case and declares that the right there under shall be exercised by the Government only in the case of inefficiency or dishonesty of the Government servant Rule 3 of the Railway Services Safeguarding of National Security Rules considered in Balakotaiah case 4 expressly says that the order of compulsory retirement will be made for misconduct defined therein
1 AIR 1958 section C 905
2 3  4 746 The rule in Dalip Singh s case1 gives a very wide power to the State to retire any of its employees on pension on political or other reasons before the age of superannuation
In short the rules dealt with in the first three decisions expressly conferred an absolute power on the appropriate authority to terminate the services of a Government servant for misconduct and the rule in the fourth decision went further and enabled the appropriate authority to dismiss the servant for any reason
It may also be noticed that in Doshi s cases2 this Court expressed the view that when 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 regarded only as dismissal or removal within article 3112 of the Constitution
The emphasis appears to be more on the existence of a rule of compulsory retirement than on the character of the termination itself
But this reservation was not accepted by the Court in Dalip Singh s case1 that is to say the emphasis is shifted to the existence of a rule of termination detracting from the permanency of the post
Pausing here a moment I ask myself the question whether these decisions can be reconciled with the aforesaid principles laid down in Dhingra s case3
In Dhingra s case this Court held that a termination of the services of a Government servant who has substantive lien on a permanent post that is to say a title to his office is dismissal or removal within the meaning of article 3112 of the Constitution
In the aforesaid three decisions the Government servant concerned had substantive lien on a permanent post but he was compulsorily retired before the age of superannuation depriving him of his title to the post
it is neither the phraseology used in respect of nor the nomenclature given to the act of termination of service that is material but the legal effect of the action taken that is decisive in considering the question whether a Government servant is dismissed or not
Whether the services of a permanent Government servant are 1 3  2  747 terminated by giving him 15 days  notice or whether his services are dispensed with before the age of superannuation by way of compulsory retirement under or outside a rule of compulsory retirement the termination deprives him of his title to the permanent post
If in the former case it amounts to dismissal in the latter case it must be equally so
I would prefer the principle laid down in Dhingra s case 1 in the matter of termination of the services of a permanent Government servant to that laid down in the said other decisions
Rule 148 of the Railway Establishment Code Vol 1 was considered both in Balakotaiah s case 2 and in Jeewan Ram s case3 in the former though there were some observations in support of the appellants  contention the question of construction of the rule was expressly left open and in the latter though the Government servant concerned was discharged under that rule the decision proceeded on the basis that he was expressly removed for misconduct
A number of decisions of the High Courts are cited
I have gone through them carefully
I am not referring to them in detail as though some of the judgments contain instructive discussion on though subject they practically extended the principle of Shyam Lal s case4 and held that the termination of service such as under r 1483 was not dismissal within the meaning of article 311 of the constitution As in my view Shyam Lal s case must yield to Dhingra s case a further discussion of the said decisions is not called for
The effect of the two rules is the same the difference is only superficial which lies more in clever drafting than in their content
Take for instance the following two rules i the Government may terminate the services of a permanent Government servant at any time or after a specified period but before the normal superannuation age by way of compulsory retirement and ii the Government may terminate 1  3 A 1
R 2  4  748 the services of a permanent civil servant by giving him 15 days  notice
Arbitrariness is writ large on both the rules both the rules enable the Government to deprive a permanent civil servant of his office without enquiry
Both violate article 3112 of the Constitution
Both must be bad or none at all
The following principles emerge from the aforesaid discussion
A title to an office must be distinguished from the mode of its termination
It a person has title to an office he will continue to have it till he is dismissed or removed therefrom
Terms of statutory rules may provide for conferment of a title to an office and also for the mode of terminating it
If under such rules a person acquires title to an office whatever mode of termination is prescribed whatever phraseology is used to describe it the termination is neither more nor less than a dismissal or removal from service and that situation inevitably attracts the provisions of article 311 of the Constitution
The argument that the mode of termination prescribed derogates from the title that otherwise would have been conferred on the employee mixes up two clear concepts of conferment of title and the mode of its deprivation
Article 311 is a constitu tional protection given to Government servants who have title to office against arbitrary and summary dismissal
It follows that Government cannot by rule evade the provisions of the said Article
The parties cannot also contract themselves out of the constitutional provision
Once that principle is accepted the cases dealing with compulsory retirement before the age of superannuation cannot also fall outside the scope of article 311 of the Constitution
Age of superannuation is common to all permanent civil servants it depends upon an event that inevitably happens by passage of time unless the employee dies earlier or resigns from the post
It does not depend on the discretion of the employer or the employee it is for the benefit of the employee who earns a well earned rest with or without pensionary benefits for the rest of his life it has by custom and by convention become 749 an inextricable incident of Government service and it is an incident of a permanent post
Notwithstanding the rule fixing an age of superannuation a person appointed to such a post acquires title to it
The same cannot be said of a compulsory retirement before the age of superannuation
It is not an incident of the tenure it does not work automatically it is not conceived in the interest of the employee it is a mode of terminating his employment at the discretion of the appointing authority
In effect whatever may be the phraseology used in terminating the services of a Government employee it is punishment imposed on him for it not only destroys his title but also inevitably carries with it a stigma such a termination is only dismissal or removal within the meaning of article 311 of the Constitution
I would therefore with greatest respect follow the principle laid down in Dhingra s case1 in respect of permanent servants in preference to that accepted by Shyam Lal s case2 and the subsequent decisions following it
Now let me turn to the relevant rules of the Indian Railway Establishment Code hereinafter called that Code
The Code is in two volumes
The first volume embodies all rules governing the service conditions of railway servants with the exception of those rules which correspond to the Fundamental Rules Supplementary Rules Pension Rules and the Civil Service Regulations applicable generally to all civil servants under the Government of India
The excepted rules are included in Vol
11 of the Code
Fundamental Rules embodied in Vol
11 of the Code describe inter alia the cadre strength the different posts in the cadre and the nature of the appointments made in respect of such posts
Broadly the posts are divided as permanent officiating temporary and for definite periods
Rule 2003 14 defines lien to mean th title of a railway servant to hold substantively either immediately or on the termination of a period or periods of absence a permanent post including a tenure post to which he has been appointed substan 1  2 750 tively
Under r 2006 Unless in any case it be otherwise provided in these Rules a railway servant
on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post
Under r 2009 A railway servant s lien on a post may in no circumstances be terminated even with his consent if the result will be to leave him without a lien or a suspended lien upon a permanent post
 Rule 2042 provides that the pay and allowances of a railway servant who is removed or dismissed from service ceases from the date of the order of removal or dismissal
Rule 2046 under the heading Compulsory Retirement fixes the age of superannuation for different categories of service
These rules clearly lay down that a railway servant on a substantive appointment to a permanent post acquires a lien on that post and he does not lose it till he attains the age of superannuation or is dismissed or removed in the manner prescribed that is he acquires a title to hold substantively a permanent post
It is not of much relevance to give any particular nomenclature to that post
It may not be a life tenure
It may not also be a permanent post in the literal sense of the term but it confers a title to that post with all the advantages appertaining to that post and ordinarily it comes to an end only on the incumbent attaining the age of superannuation with or without pensionary benefits
Briefly stated the aforesaid Fundamental Rules embodied in Vol
11 of the Code create offices of stability and security which for all practical purposes are permanent posts
If so the termination of services of such a servant can only be dismissal or removal for he will be deprived of his title to the said office
If that was the legal position for the reasons already given the said r 1483 And r 149 conferring a power on the appointing authority to remove such a permanent servant on notice would infringe the constitutional protection given to a Government servant under article 311 of the Constitution
A permanent post and such rules cannot stand together the latter must inevitably yield to the former
751 I therefore hold that r 1483 and r 149 of the Railway Establishment Code being violative of the provisions of articles 14 and 311 of the Constitution are void and unenforceable
In the result I agree that Civil Appeals Nos 711 to 713 of 1962 and Civil Appeal No 714 of 196 should be allowed with costs and that Civil Appeal Nos 837 to 839 of 1963 should be dismissed wit costs
DAS GUPTA J
The principal question raised in the four appeals which have been numbered 711 to 714 of 1962 is as regards the validity of Rule 148 3 of the Indian Railway Establishment Code in respect of certain non pensionable railway servants that their services shall be liable to termination on notice for the period as prescribed therein
The appellants all railway employees whose services had been terminated on notice in accordance with the above provision and who have failed to obtain relief against the orders of termination challenge the validity of this provision on two grounds
Their first contention is that this Rule in providing for termination of service on mere notice contravenes the provisions of Art 3112 of the Constitution secondly it is contended that the Rule violates article 14 of the Constitution It will be necessary to examine these two grounds separately
Is the termination as provided for in the above provision in Rule 148 3 removal  or dismissal within the meaning of article 3112 of the Constitution That is the question that falls to be answered for deciding the first grounds
To answer this against we have to determine first the connotation of the two words removal  and dismissal  as used in article 3112
In my opinion this matter is completely covered by numerous decisions of this Court
Before turning to the decisions however it will be convenient to examine the matter in the context in which article 311 2 appears in the Constitution and also the historical background of the protection afforded thereby
For this purpose it is necessary first to consider the three Articles of the Constitu 752 tion viz articles 309 310 and 311
They are in these words 309
Subject to the provisions of this Con stitution Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State  Provided that it shall be a competent for the President or such persons as he may direct in the case of services and posts in connection with the affairs of the Union and for the Governor or Rajpramukh of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provisions in that behalf is made by or under an Act of the appropriate Legislature under this Article and any rules so made shall have effect subject to the provisions of any such Act
1 Except as expressly provided by this Constitution every person who is a member of a defence service or of a civil service of the Union or of an all India service or holds and post connected with defence or any civil post under the Union holds office during the pleasure of the President and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor or as the case may be the Raj pramukh of the State
2 Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or as the case may be of the Governor or Rajpramukh of the State any contract under which a person not being a member of a defence service or of an all India service or of civil service of the 753 Union or a State is appointed under this Constitution to hold such a post may if the President or the Governor or the Rajpramukh as the case may be deems it necessary in order to secure the services of a perso n having special qualifications provide for the payment to him of compensation if before the expiration of an agreed period that post is abolished or he is for reasons not connected with any misconduct on his part required to vacate that post
1 No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil
post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed
2 No such person as aforesaid shall 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
Provided that this clause shall not apply a where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge b where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause or c where the President or Governor or Rajpramukh as the case may be is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity
3 If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause 2 the decision thereon of the authority empowered 1SCI64 49 754 to dismiss or remove such person or to reduce him in rank as the case may be shall be final
 It has to be noticed that both Articles 309 and 310 are subject to article 31 1
In other words if any rule is made under article 309 as regards the conditions of service of a government servant in the matter of his dismissal or removal or reduction in rank it has to comply with the requirements of article 31 1
Again before any order dismissing or removing or reducing a government servant in rank is made by the President or the Governor in exercise of his pleasure the President or the Governor has to comply with the require ments of article 3112 of the Constitution
Under article 310 all servants of the State hold office at pleasure of the President or the Governor as the case may be
That by itself means that the officer has no right to be heard before his services are terminated
To this article 311 provides an exception in the case of removal or dismissal
It is easy to see that if every termination of service amounted to dismissal or removal the resultant position will be that every officer would have the right to be heard before any action could be taken under article 310
That would leave no field in which article 310 could operate
This by itself is sufficient to show that not all kinds of termination of service were intended to come within article 311
Reading Articles 310 and 311 together it will be reasonable to understand them to say that the officer will have the right to be heard before his services were terminated by dismissal or removal but in all other cases of termination of his service he will not have any such right
I have therefore no hesitation in rejecting the extreme proposition urged on behalf of the appellants that the words dismissal or removal in article 311 include every kind of termination of service
This brings us to the question  what kinds of termination of service come within the words dismissal or removal and what kinds are not
Taking the second Dart of the question first it is not difficult to mention at least two kinds of termination which 755 cannot reasonably be included within the words dismissal or removal
Take for instance the case where a government servant resigns his post but the resignation is not under the rules effective before it has been accepted by his superiors
Here termination results only when the superior officer accepts the resignation
It may be correct to say that thereby he terminates the service
But it could not reasonably be said that the superior officer has removed the servant from service or dismissed him from service
Such removal or dismissal was not necessary at all because of the resignation
Take again the case of a servant who has been appointed to an office for a period of three years
When the three year period ends he is asked to go
There is termination of service
But nobody would said that the superior officer by asking him to go at the end of the period had dismissed him or removed him from service
The real question however is not so much as what in common parlance would be understood to be the dismissal or removal but what the Constitution intended by these words
In this connection it will be helpful to examine the use of the words dismissal and removal in the earlier Constitution Acts
The Charter Act of 1793 mentions in section 36 that nothing in this Act contained shall extend or be construed to extend to preclude or take away the power of the Court of Directors of the said Company from removing or recalling any of the officers or servants of the said Company but that the said Court shall and may at all times have full liberty  to remove recall or dismiss any of such officers or servants at their will and pleasure in the like manner as if this Act had not been passed Section 35 made it lawful to and for the King s Majesty his heirs and successors by any writing or instrument under him or their sign manual countersigned by the President of the Board of Commissioners for the affairs of India to remove or recall any person or person holding any office employment or commission civil or military under the said United Company 756 in India for the time being
In the Charter Act of 1833 similar provisions were enacted in sections 74 and 75
Section 74 make it lawful for His Majesty by any Writing under His Sign Manualcountersigned by the President of the said Board of Commissioners to remove or dismiss any person holding any office employment or commission civil or military under the said Company in India and to vacate any Appointment or Commission of any person to any such office or employment
 Section 75 ran thus Provided always and be it enacted that nothing in this Act contained shall take away the Power of the said Court of Directors to remove or dismiss any of the officers or servants of the said Company but that the said Court shall and may at all Times have full Liberty to remove or dismiss any of such officers or servants at their will and pleasure 
When the Act of 1858 transferred the government of India to Her Majesty the Queen of England section 38 of the Act provided that Any writing under the Royal Sign Manual removing or dismissing any person holding any office employment or commission civil or military in India of which if this Act had not been passed a copy would have been required to be transmitted or delivered within eight days after being signed by Her Majesty to the Chairman or Deputy Chairman of the Court of Directors shall in lieu thereof be communicated within the time aforesaid to the Secretary of State in Council
 It seems to me that in making these statutory provisions as regards dismissal or removal of public servants the British Parliament had in mind those servants only who had acquired such a right to the post under their conditions of service that but for such statutory provisions their dismissal or removal would have been unlawful
If their service was terminable by the ordinary law of the land there 757 would have been no need in section 36 of the 1793 Act or section 75 of the 1833 Act to speak of the right of the Court of Directors of the Company to remove or dismiss the Company s officers or servants at their will and pleasure
It is clear that by these provisions the British Parliament was emphasizing the right of the Court of Directors of the Company to remove or dismiss such servants whose services would not have been terminable under the ordinary law of master and servant
It is also legitimate to read the provisions making it lawful for the King of England to remove or dismiss the Company s servants s
35 in the Charter Act of 1793 and section 75 of the Charter Act of 1833 as intended to terminate the service of the same class of servants viz those whose services were not terminable under the ordinary law of the land
In the light of this legislative history the words removal and dismissal in section 38 of the Act of 1858 and thereafter in the Government of India Act 1915 Section 95 and section 96B  cannot but be read also to mean termination of service of such servants only who would not have been liable to termination under the ordinary law of master and servant
In other words only those servants who by their terms and conditions of their appointment to the service bad acquired a right to continue for a particular period which could not under the ordinary law be put an end to were intended to get the benefit of these provisions as regards dismissal or removal
By the time the Government of India Act
 1935 came to be enacted by Parliament rules had been framed by the Secretary of State in Council under section 96B of the Government of India Act in which these words removal and dismissal were used
Among the rules framed under this section in 1924 was Rule XIII which was in these words Without prejudice to the provisions of any law for the time being in force the Local Government may for good and sufficient reasons 1 Censure 2 Withhold promotion from 758 3 Reduce to a lower post 4 Suspend 5 Remove or 6 Dismiss any officer holding a post in a provincial or subordinate service or a special appointment
 In the fresh set of rules framed in 1930 Rule 49 took the place of Rule XIII of the earlier Rules and was in these words R 49
The following penalties may for good and sufficient reason and as hereinafter provided be imposed upon members of the services comprised in any of the classes 1 to 5 specified in Rule XIV namely i Censure ii withholding of increments or promotion iii reduction to a lower post or time scale or to a lower stage in a time scale iv recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders v suspension vi removal from the civil service of the crown which does not disqualify from future employment vii dismissal from the civil service of the crown which ordinarily disqualifies from future employment
Explanation The discharge a of a person appointed on probation during the period of probation b of a person appointed otherwise than under contract to hold a temporary appointment on the expiration of the period of the appointment 759 c of a person engaged under contract in accordance with the terms of his contract does not amount to removal or dismissal within the meaning of this Rule
 These Rules show that the Secretary of State in Council considered removal and dismissal from the service of the Crown only as penalties
Explanation to Rule 49 of the 1930 Rules also shows that discharge from service of a person who had not acquired a right to the post was not considered to be removal or dismissal
When the British Parliament made special provision in the Government of India Act 1935 as regards removal or dismissal of persons in the civil service of the Crown it had before it not only the history of these words removal and dismissal in the Charter Act 1793 Charter Act of 1833 Government of India Act 1858 the Government of India Act 1915 but also these Rules framed by the Secretary of State in Council
It is reasonable to think therefore that in making these special provisions in the 1935 Act the British Parliament proceeded on the basis that only terminations of service by way of punishment which could not have been inflicted under the ordinary law of master and servant would come within these words removal and dismissal
Primarily such terminations by way of punishment could be made only in respect of those servants who had not acquired a right to continue in service
It might however be said that even where there was no such right and termination could have been effected therefore under the ordinary law of contract between master and servant any termination which carried with it loss of benefits already acquired say forfeiture of pension or of provident fund was also contemplated to come within these words
Termination in no other case could be said to be by way of punishment and in the light of the previous history of the use of the words removal and dismissal in connection with the civil servants of the crown it appears to be abundantly clear that 760 in the Government of India Act 1935 the words removal and dismissal were not intended to include such other terminations
When the Constitution was framed the provisions as regards removal and dismissal as contained in section 240 of the Government of India Act were embodied in articles 310 and 311 with practically little change
Nothing has been shown to us to indicate that the Constitution makers could have meant by these words removal and dismissal in article 31 1 anything different from what the British Parliament had intended to include under those words in the Government of India Act 1935
The above consideration of the context an previous legislative history leads to the conclusion that the words removal  or dismissal  in article 311 meant only such terminations of service where the servant had acquired a right to continue in the post which right was cut short by the termination and such other terminations even where there was no such right as resulted in loss of acquired benefits
Turning now to the decided cases we find that the question now under consideration was fully discussed in this Court s decision in Parshotam Lal Dhingra vs Union of India1
After an exhaustive discussion of appointments of Government servants to a permanent or temporary post substantively or on probation or on an officiating basis and numerous rules of service in connection with such appointments Das CJ speaking for the majority of the Court recorded the conclusion thus It follows therefore that if the termination of service is sought to be brought about otherwise than by way of punishment then the government servant whose service is so terminated cannot claim the protection of article 3112
 The learned Chief Justice went on to say The foregoing conclusion however does not solve the entire problem for it has yet to 1 761 be ascertained as to when an order for the termination of service is inflicted as and by way of punishment and when it is not
It has already been said that where a person is appointed substantively to a permanent post in Government service he normally acquires a right to hold the post until under the rules he attains the age of superannuation or is compulsorily retired and in the absence of a contract express or implied or a service rule he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct negligence inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with article 3112
Termination of service of such a servant so appointed must per se be a punishment for it operates as a forfeiture of the servant s rights and brings abo ut a pre mature end of his employment
Again where a person is appointed to a temporary post for a fixed term of say five years his service can not in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct negligence inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with article 3112
The premature termination of the service of a servant so appointed will prima facie be a dismissal or removal from service by way of punishment and so within the purview of article 3112
At page 862 the learned Chief Justice again observed In short if the termination of service is founded on the right flowing from contract or the service rules then prima facie the termination is not a punishment and carries with it no evil consequences and so article 311 is not attracted But even if the Government has by contract or under the rules the right to terminate the 762 employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reducing in rank the Government may nevertheless choose to punish the servant and if the termination of service is sought to be founded on misconduct negligence inefficiency or other disqualification then it is a punishment and the requirements of article 311 must be complied with
 At page 863 the learned Chief Justice observed thus Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of Promotion then that circumstance may indicate that although in form the government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules in truth and reality the Government has terminated the employment as and by way of penalty
 Several years before this the question  what is meant by the words removal  or dismissal  had been considered by this Court in Shyam Lal vs The State of Uttar Pradesh1
Shyam Lai the appellant had been ordered to retire compulsorily under the provisions of article 465A of the Civil Service Regulations
On behalf of the appellant it was urged inter alia that this order was invalid as the provisions of article 3112 of the Constitution had not been complied with
In deciding that the compulsory retirement did not amount to dismissal or removal within the meaning of article 3112 of the Constitution the Court laid down that 1 every termination of service does not amount to removal or dismissal and 2 that dismissal or removal is a punishment imposed on an officer as a penalty which involves loss of benefit already earned 1  It was pointed out that on compulsory retirement an officer would not suffer any diminution of the accrued benefit and though in a wide sense the officer might consider himself punished by the deprivation of the chance of serving and getting his pay till he attains the age of superannuation and thereafter to get an enhanced pension there is clearly a distinction between the loss of benefit already earned and the loss of prospect of earning something more where the officer did not lose the benefit already earned the same was not dismissal or removal
At page 42 of the Report the Court said Finally Rule 49 of the Civil Service Classification Control and Appeal Rules clearly indicates that dismissal or removal is a punishment
This is imposed on an officer as a penalty It involves loss of benefit already earned
 In Doshi s Case  the Court had to consider an order of compulsory retirement made under Ruled 165A of the Bombay Civil Service Rules as amended by the Saurashtra Government which gave the Government an absolute right to retire any government servant after he had completed 25 years of qualifying service or 50 years of age whatever his service without giving any reason
It was held that such an order was not removal  or dismissal  under article 311 of the Constitution
Speaking for the Court Venkatarama Aiyar J said Now the policy underlying article 3112 is that when it is proposed to take action against a servant by way of punishment and that will entail forfeiture of benefits already earned by him he should be heard and given an opportunity to show cause against the order
But that consideration can have no application where the order is not one of punishment and results in no loss of benefits already accrued and in such a case there is no reason why the terms of employment and the rules of service should not 1  764 be given effect to
Thus the real criterion for deciding whether an order terminating the services of a servant is one of dismissal or removal is to ascertain whether it involves any loss or benefits previously earned
Applying this test an order under R 165A cannot be held to be one of dismissal or removal as it does not entail forfeiture of the proportionate pension due for past services
 Hartwell s Case I was one of termination of a temporary servant under the UP Subordinate Agricultural Service who for some time served in a temporary capacity in the UP Agricultural Service
He was first reverted to his original appointment in the Subordinate Agricultural Service by an order dated May 3 1954 and later a notice dated September 13 1954 was served on him terminating his services in the Subordinate Agricultural Service
The notice purported to be under Rule 25 Cl 4 of the Subordinate Agricultural Service Rules
The Court held that the termination of the appellant s services under this rule did not amount to dismissal or removal within the meaning
of article 311 as it was in accordance with the terms of the conditions of service applicable to the appellant
Imam J speaking for the Court observed In principle we cannot see any clear distinction between the termination of the services of a person under the terms of a contract governing him and the termination of his services in accordance with the terms of his conditions of service
The order complained against did not contravene the provisions of article 311 and was therefore a valid order The proposition that it is not every termination of service of an employee that falls within the operation of article 31 1 and that it is only when the order is by way of punishment that it is one of dismissal or removal was reaffirmed by this Court in Balakotich vs The Union of India 3 
Reaffirming also the criteria indicated in Dhingar s Case3 as to what amounted 1  2  3 765 to punishment for the purpose of article 311 Venkatarama Aiyar J speaking for the Court observed The question as to what would amount to punishment for the purposes of article 311 was also fully considered in Parshotam Lal Dhingra section Case1 It was therein held that if a person had a right to continue in office either under the service rules or under a special agreement a premature termination of his service would result in loss of benefits already earned and accrued that would also be punishment
 Proceeding to apply this proposition to the facts of the case before it the Court said In the present case the terms of employment provide for the services being terminated on a proper notice and so no question of pre mature termination arises
Rule 7 of the Security Rules preserves the rights of the employee 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
It was stated for the appellants that a person who was discharged under the rules was not eligible for reemployment and that was punishment
But the appellants are unable to point to any rule imposing that disability
The order terminating 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 article 311
 The law as thus settled by this Court was again applied in Dalip Singh vs State of Punjab
2 Dalip Singh who had been Inspector General of Police PEPSU was compulsorily retired from service by the Rajpramukh by an order dated August 18 1950 which ran as follows His Highness the Rajpramukh is pleased to retire from service Sardar Dalip Singh Inspector 1 2 766 General of Police PEPSU on leave for ad ministrative reasons with effect from the 18th August 1950
 The appellant brought his suit asking for a declaration that the order by which he was removed from the post of Inspector General of Police was unconstitutional illegal void ultra vires and inoperative
Among the grounds on which this declaration was sought was that the compulsory retirement of the appellant which had been made under Regulation 278 of the Patiala State Regulations was removal from service within the meaning of article 31 1 of the Constitution
Admittedly the requirements of article 3112 had not been complied with in this case and so the question had to be decided whether such a retirement was removal or dismissal within the meaning of article 31 1
The question was answered by this Court in the negative for the reasons that the order did not amount to punishment because though an enquiry had been held against him the charges or imputations against him had not been made the condition of the exercise of the power of retirement and further because the officer was not losing the benefits he had already earned as full pension was ordered to be paid
To emphasis the point that where compulsory retirement was in accordance with the rules of service it could not ordinarily be said to be by way of punishment the Court pointed out that where a rule of service provided for compulsory retirement at any age whatsoever irrespective of the length of service put in a retirement understand a rule would not be regarded as dismissal or removal
An observation in Doshi s Case1 which might appear to indicate otherwise was not followed it being pointed out that in Doshi s Case this matter did not fall to be considered
Under Rule 278 he State reserved to itself the right to retire any of its employees on pension on political or on other reasons
It did not mention any particular age for retirement under this Rule
Care was taken in this case to mention that if the rule would result in loss 1  767 of pension already earned the termination would amount to removal or dismissal
It is thus clear both on principle and on authority that the words removal and dismissal in article 311 of the Constitution mean and include only those terminations of service where a servant had acquired a right to continue in the post on the basis of terms and conditions of service and such other terminations where though there were no such right the order has resulted in loss of accrued benefits and that terminations of service which did not satisfy either of these two tests do not come within any of these words
Applying these tests to the termination of service under the provision of Rule 148 3 of the Railway Code that the service of other non pensionable railway servants shall be liable to termination on notice on either side
 I am of opinion that neither of these is satisfied
There is no doubt that this Rule applies not only to temporary railway servants but also to those railway servants who have been substantively appointed to permanent posts in the railways
A permanent post under the Fundamental Rules applicable to the railways means a post carrying a definite rate of pay sanctioned without limit of time
On substantive appointment the government servant has a lien on such post ie the right to hold it substantively The right however is limited by all the terms and conditions of service
One of such conditions is in the provision in the Rule for compulsory retirement Rule 2046 of the Railway Code which corresponds to Fundamental Rule 56 provides that generally the date of compulsory retirement of a railway servant other than a ministerial servant is the date on which he attains the age of 55 years
He may be retained in service after the date of compulsory retirement with the sanction of the competent authority on public grounds which must be recorded in writing but he must not be retained after the age of 60 years except in very special circumstances
Clause 2 of Rule 2046 provides the rule of compulsory retirement for ministerial servants
Those government servants 768 who have entered government service on or after the 1st April 1938 and those who being in government service on the 31st March 1938 did not hold a lien or a suspended lien on a permanent post on that date shall ordinarily be required to retire at the age of 55 years but if he continues to be efficient should ordinarily be retained in service upto the age of 60 years but that he must not be retained after that age except in very special circumstances which must be recorded in writing and with the sanction of the competent authority
These rules have been modified from time to time but generally speaking a rule has always existed fixing the age beyond which a railway servant will not be allowed to be retained in service
If such a rule of compulsory retirement had not existed the servant would have had the right to continue in the service till his death
The rule however limits that right by providing in effect that the service would be terminated at a certain age
Rule 1483 is just another rule limiting the servant s right to continue in  service
It is as much a condition of service as Rule 2046 and in deciding the nature and extent of the right of a railway servant to whom Rule 1483 applies to continue in service Rule 1483 is of as much importance as Rule 2046
A railway servant to whom Rule 1483 applies has two limitations put on his right to continue 1 termination on attaining a certain age and 2 termination on service of a notice under Rule 1483
Where the service is terminated by the order of retirement under Rule 2046 the termination is of a service where the servant has not the right to continue
So it is not removal  or dismissal 
Equally clearly and for the same reason when the service is terminated by notice under Rule 1483 the termination is not removal  or dismissal 
It has not been suggested that the second test of loss of accrued benefits is satisfied in terminations under Rule 1483
If in any particular instance the order of termination entails loss of accrued benefits that will happen not because of anything in R 1483 169 but for some extraneous action
Where that happens it will be right to consider such terminations as removal or dismissal
But that consideration is foreign to the provisions of Rule 1483
1 have therefore come to the conclusion that the first ground raised by the appellants in challenging the validity of Rule 1483
 viz that it contravenes the provisions of article 311 of the Constitution must be rejected
It is necessary now to consider the second ground urged by the appellants viz that Rule 1483 contravenes article 14 of the Constitution
Two contentions are urged in support of this ground
First it is urged that the Rule gives no guidance to the authority who would take action on it as regards the principle to be followed in exercising the power
Secondly it is urged that the Rule discriminates between railway servants and other public servants
In my opinion there is considerable force in the first contention
Classifying the statutes which may come up for consideration on a question of its validity under article 14 of the Constitution in Ram Krishna Dalmia vs Justice SR Tendolkar  Ors
I this Court observed under the third class of such statutes thus A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply
In determining the question of the validity or otherwise of such a statute the Court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the government in the matter of the selection or classification 1  1SCI64 49 770 Applying the principle laid down in the above case to the present rule 1 find on scrutiny of the Rule that it does not lay down any principle or policy for guiding the exercise of discretion by the authority who will terminate the service in the matter of selection or classification
Arbitrary and uncontrolled power is left in the authority to select at its will any person against whom action will be taken
The Rule thus enables the authority concerned to discriminate between two railway servants to both of whom Rule 1483 equally applied by taking action in one case and not taking it in the other
In the absence of any guiding principle in the exercise of the discretion by the authority the Rule has therefore to be struck down as contravening the requirements of article 14 of the Constitution
It is unnecessary for me to consider the other contention as mentioned above which has been urged in support of this ground
My conclusion therefore is that though the provisions of Rule 1483 in respect of certain non pensionable railway servants that their services shall be liable to termination on notice for the period prescribed therein does not contravene article 3112 of the Constitution it contravenes article 14 of the Constitution and consequently is void
I would accordingly allow with costs the four appeals CA Nos
711 71362 and CA No 71462 set aside the order of the High Court and order that appropriate writs be issued in favour of the appellant as prayed for
The other three appeals CA Nos
837 839 of 1963 challenge the decision of the Assam High Court in favour of three railway servants whose services had been terminated under Rule 149 of the Railway Code that these terminations were invalid
Rule 1493 is in practically the same terms as Rule 1483 and provides for the termination of certain railway servants on notice on either side for the period prescribed
As however before November 1957 non 771 pensionable service had been brought to an end and option was given to non pensionable servants either to opt for pensionable service or to continue under their previous terms and conditions of service Rule 1493 mentions permanent railway servants generally without any reference to their being nonpensionable
The validity of his Rule was attacked on behalf of railway servants on the same ground as have been considered with regard to Rule 1483
For the reasons already given when discussing Rule 1483 I am of opinion that Rule 1493 does not contravene article 3112 of the Constitution but contravenes article 14 of the Constitution
The terminations of service under Rule 1493 of the Railway Code were therefore rightly held by the High Court to be invalid
I would accordingly dismiss these appeals with costs
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 article 3101
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 article 3102
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 articles 53 and 154 of the Constitution cannot be delegated  State of Uttar Pradesh vs Babu Ram Upadhya1 It is open to the 1  772 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 article 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 article 310 which is wholly independent of the power conferred by the rules or legislation under article 309 and the power conferred by legislation enacted or rules made or continued by virtue of article 309 are subject to certain restrictions contained in articles 311  314
Article 314 grants certain special protections to members 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 1 that such members of the service shall not be dismissed or removed by an authority subordinate to that by which he was appointed 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 773 The proviso to cl
2 of article 311 excludes three specific classes of cases from the protection of the second guarantee
Guarantees under article 311 are except to the extent specifically provided absolute and are not subject to the exercise of power legislative or executive
Accordingly the pleasure of the President or of the Governor cannot be exercised in a manner inconsistent with cl
2 of article 311
Article 310 must therefore be read subject to article 3112 and the rules made or legislation enacted under article 309 must also be read subject to article 31 1
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 on probation officiating servants and even those holding posts under contracts all have the protection of article 31 1
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
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 774 and were governed by the rules made under article 309 and their services were terminated in purported exercise of powers under Rule 1483
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 article 309 and was later modified so as
to exclude from its operation determination 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 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 Department 3 months  notice b Officers on probation in the Medical Department month s notice c Permanent Gazetted Officers 6 months  notice d Permanent Non gazetted employees month s notice
775 4 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
 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
Clause 3 of Rule 148 is impugned by the appellants on two principal grounds 1 that it is inconsistent with the protection which is guaranteed to all public servants by article 3112 and 2 that it contravenes the fundamental freedom under article 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 776 any event an arbitrary power is conferred upon the authority competent in that behalf under the rules to terminate employment 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 1483 being removal from service in the absence of rules prescribing machinery for affording 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 article 311 and is void
This plea assumes that every termination of employment by notice under Rule 1483 amounts to removal
But on the plain text of cl
3 it is evident that the right to determine employ ment 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 1 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
The Rule is framed under article 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 20462  3 of the Railway Code 1958 and to discharge from employment under Rule 1483 if his service is non pensionable
Inci 777 dents relating to termination of employment on superannuation on orders of compulsory retirement and on discharge from service under Rule 1483 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
In considering what the expression dismissed or removed used in article 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 section 35 Charter Act 1793 33 Geo
III 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 relation to appointments and admission to services and matters connected therewith being vested in the Secretary of State in Council section 37 Govern ment of India Act 1858 21  22 Vict
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 section 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 678 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 followed by sections 240 to 243 of the Government of India 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 section 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 article 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
96 B2 of the Government of India Act 1919called 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 679 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 ie 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
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 employ 780 ment
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
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 article 3101 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 article 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 article 311 the provision of article 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 minimising the content of the guarantee in article 311 which protects all public servants temporary probationers contractual as well as those holding substantive posts
There is also a consistent body of authority which has taken the view that the expression dismissed or removed within the meaning of article 311 of the Constitution involves determination of employment as a disciplinary measure that is termination of employment on some ground personal to the officer concerned such as incapacity or imputation 781 of charge against him which renders it inexpedient undesirable that he should continue in public employment Satish Chandra Anand vs Union of India1 Shyam Lal vs State of Uttar Pradesh  The Union of India2 and Parshotam Lal Dhingra vs Union of India 3
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 ie has it the effect of depriving the public servant concerned of the right 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 discip linary 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 employ ment
Rules framed under article 309 relating to super annuation to compulsory retirement on attaining 1  2 1955 1 SCR 3  782 a certain age or completing a specified period of service or to determination of employment of temporary 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 non pensionable office is subject to the condition of determination by notice under Rule 1483 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 ie 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
Under the Indian Railway Establishment Code Vol 11 lien is defined in Rule 200314 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 appoin 783 ted 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
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 superannuated 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
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 ie 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 784 appointment of a public servant under the Union or the State
Nor is the appointment to a public post during good behaviour ie 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 articles 309 and 310 of the Constitution
It may be recalled that the guarantee under article 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 article 309 of the Constitution
The tenure of office is subject to article 310 prescribed by article 309 that is the governing code
The rules cannot undoubtedly provide for dismissal or removal otherwise than in a manner consistent with article 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 articles 309 and 310
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 785 departure from the settled course of authority
But in considering whether cl
3 of Rule 148 infringes the constitutional guarantee under article 3112 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 article 311 upon Rule 1483 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 camouflage an order of removal from service as a disciplinary measure the protection of article 3112 would undoubtedly be attracted for such an order cannot be regarded as made in exercise of authority conferred by Rule 1483
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
I will briefly refer to some of the illustrative decisions of this Court
In Satish Chandra Anand s case1 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 article 311 of the Constitution
The public servant in Satish Chandra Anand s case1 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 1  1SCI64 50 786 by notice according to the rules governing his employment article 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 case1 was approved in Parshotam Lal Dhingra s case2 
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 article 311
In Hartwell Prescott Singh vs The Uttar Pradesh Government and others3 an order discharging a temporary employee from service by giving him a month s notice as prescribed by Rule 254 of the UP Subordinate Agriculture Service Rules by which he was governed was held not to amount to dismissal or removal within the meaning of article 31 1
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
In Parshotam Lal Dhingra s case 2 Das CJ 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 
in the case of an appointment to permanent post in a Government service on 1 19531 SCR 6 5
2  3 19581 section C R 509
787 probation or on an officiating basis the servant so appointed does not acquire any substantive right to the post and consequently cannot complain 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 Govern ment 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 terminate d at any time except in one case namely when the appointment to a temporary post is for a definite period
 In The State of Bihar vs Gopi Kishore Prasad1 Sinha CJ speaking for the Court summarised certain propositions governing the tenure of temporary public servants of which the following two are material 1 Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated without any taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant or removing him from service
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  In The State of Orissa and another vs Ram Narayan das 2 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 article 3112 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 1  2  788 probationer on the result of an enquiry on charges of misconduct negligence inefficiency or other dis qualification 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
In section Sukhbans Singh vs The State of Punjab1 it was held that the protection of article 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 vs Gopal Chandra Datta2 and in Ranendra Chandra Bannerjee vs The Union of India3
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 vs The State of Punjab and others4 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 is entitled to the protection of article 3112 of the Con stitution
In Jagdish Mitter vs The Union of India 5 it was held that an order discharging a temporary servant from employment b notice after recording that he was found undesirable to be retained in Government service was one casting a stigma and 1  2 1963 Supp 1 SCR 266
3  4 1963 3 SCR 716
5 A I R 789 was therefore an order of dismissal attracting the application of article 311 2 of the Constitution
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 article 3112
In Shyam Lal s case1 challenge to the validity of termination of employment of a member of the Indian Service of Engineers compulsorily retired after be 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 article 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 leveling 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 misbehavior 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
In The State of Bombay vs Subhagchand M Doshi2 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 1  2  790 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 article 3112 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 It should be added that questions 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 reregistration only as dismissal or removal within article 3112 In P Balakottaiah vs The Union of India and others1 an order for compulsory retirement under Rule 3 of the Railway Services Safeguarding of National Security Rules 1949 was challenged as contravening article 3112
The public servants concerned in those appeals were railway servants and their services were terminated 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 section 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 article 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 1  791 In the present case the terms of employment provide for the services being terminated on a proper notice and so no question of prema ture 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 article 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 1483 was neither one of dismissal nor removal within the meaning of article 3112
In Parshotam Lal Dhingra s case 1 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 CJ speaking for the majority of the Court observed  
every termination of service is not 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 compul sory 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 article 3112 as has also been held by this Court in Shyam Lal vs 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 allowances under r 52 of the Fundamental Rules 1  792 lm0
In a still more recent case Dalip Singh vs State of Punjab1 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 madewas not one of dismissal or removal from service within the meaning of article 3112 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 article 311 and the observations hereinbefore quoted made by Venkatarama Aiyar J in Saubhagchand Doshi s case2 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
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 sub stantively holding a permanent post will not attract the provisions of article 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
A railway employee who has accepted employment on the conditions contained in the rules cannot after having obtained employment claim that the 1  88 4  2 1958 SCR 1052
793 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 covenant or regulation
If the principle of the binding 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 compulsory retirement terminating contracts terminating temporary employment or employments on probation and orders terminating employment after notice under Rule 1483
If Rule 165 A of the Bombay Civil Services Classification Control and Appeal Rules as amended which fell to be considered in Saubh Chand Doshi s case 1 was not invalid if Rule of the Railway Services Safeguarding of National Security Rules 1949 which fell to be considered in P Balakottaiah s case2 was not invalid if Rule 278 of the Patiala State Regulations which fell to be considered in Dalip Singli s case 3 was not invalid if Rule 5a of the Central Government Services Temporary Service Rules 1949 which fell to be considered in Satish Chandra Anand s case 4 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 article 3112 may be attributed to Rule 1483
The termination of employment under Rule 1483 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 1483 and does not cast any stigma upon him
In the result I am unable to agree that 1  2  3 4 1953 SCR 655
794 Rule 1483 was invalid as infringing the guarantee of constitutional protection under article 3112
In appeals Nos 837 839 of 1963 the question as to the validity of the Rule 1493 falls to be determined
That Rule was substituted for the original Rule 1483 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 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 service due to mental or phvsical incapacity
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 1493 makes a departure from Rule 1483
The latter Rule applied only to members of the non pensionable service whereas Rule 1493 applies to all members of the railway service holding substantive appointments and brings within its fold all employees even those who have entered employ ment 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 1483 is brought within Rule 1493 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 article 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 1493 which renders determination of employment in the 795 manner provided therein per se inconsistent with article 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 1493 made applicable to him after he entered service would per se amount to dismissal or removal and it would be inconsistent with article 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 o rights which he had already acquired
The alternative ground of invalidity that the rule infringes the fundamental right of equal protection of the laws under article 14 of the Constitution may now be considered
This ground was set up under two broad heads
1 There is no other public employment under the Government of India in which conditions similar to these contained in Rule 1483 or Rule 1493 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 article 14 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 796 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 to paralyse communications and movement of 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 doctrinaire 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 article 14
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 differential 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 797 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
2 Rules 1483 and Rule 1493 are so framed as to lead to discriminatory treatment of Railway servants because by the exercise of 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 of the equal protection of the laws
Rule 1483  as it stood applied only to non pensionable services and not to pensionable services and Rule 1493 applies to all railway servants holding posts pensionable and non pensionable
In dealing with a similar argument in Satish Chandra Anand s case1 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 There was no compulsion on the petitioner to enter into the contract he did
He was as free under the law as any other p erson to accept or to reject the offer which was made to him
Having accepted he still has open to him all the right 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 1  798 of any laws which others similarly situated could claim
 These observations in my judgment would with appropriate variations be applicable in considering the validity of Rules 1483  1493
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 em ployment 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 open 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
The law which applies to railway servants falling within the class to which Rules 1483 and 1493 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 1483
There was no discrimination between them the same law which protected other servants in the same group non pensionable servants protected the appellants in appeals Nos
711 714 of 1962 and also provided for determination of their employment
799 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 exer cised 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 800 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 1483 cannot therefore be regarded as invalid either as infringing article 3112 of the Constitution or as infringing article 14 of the Constitution
For the same reasons Rule 1493 cannot also be regarded as invalid
But the orders imposing upon the public servants determination of employment in exercise of the powers under Rule 1493 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 article 3112 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
ORDER BY COURT 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


Summary:
Moti Ram Deka was a peon employed by the North East Frontier Railway and Sudhir Kumar Das was a confirmed clerk
General Manager North East Frontier Railway terminated th services under R 1483 of Indian Railway Establishment Co Vol
They challenged the termination of their services but th writ petitions were rejected by the Assam High Court and t came to this court by special leave
Priya Gupta was an Assistant Electrical Foreman in North Eastern Railway
His services were terminated under R 148
His writ petition and Letters Patent Appeal challenging termination of his services having been rejected by Allahabad High Court he came to this Court by special leave
Tirath Ram Lakhanpal was a Guard employed by the Northen Railway
His services were terminated under R 148
His writ petition and Letters Patent Appeal were dismissed by Punjab High Court and he came to this court by special leave
SB Tewari Parimal Gupta and Prem Chand Thakur employed in the
North Eastern Frontier Railway
Their service were terminated under R 149
Their writ petitions challenging termination of their services were accepted by the Assam High Court and Union of India came to this Court after getting a certificate of fitness from the Assam High Court
The only question involved was the constitutional validity or otherwise of Rules 1483 and 1493 of the Indian Railway Establishment Code on the ground that they violated articles 14 and 3112 of Constitution of India
Held By majority by Gajendragadkar Wanchoo Hidaya tullah Ayyangar Subba Rao and Das Gupta JJShah J dissenting 684 that Rules 1483 and 1493 of Indian Railway Establishment Code were invalid
Per Gajendragadkar Wanchoo Hidayatullah and Ayyangar jj
Rules 1483 and 1493 are invalid inasmuch as they are inconsistent with the provisions of articles 3112
The termination of the services of a permanent servant which is authorised by those rules is no more and no less than his removal from service and hence article 3112 must come into play in respect of such cases
The rule which does not require compliance with the procedure prescribed under article 3112 must be struck down as invalid
A person who substantively holds a permanent post has a right to continue in service subject to the rules of superannuation and compulsory retirement
If for any other reason that right is invaded and he is asked to leave his service the termination of his service must inevitably mean the defeat of his right to continue in service and as such it is in the nature of a penalty and amounts to removal
In other words termination of the services of a permanent servant otherwise than on ground of superannuation or compulsory retirement must per se amount to his removal and if by R 1483 or R 1493 such a termination is brought about the rule clearly contravenes article 3112 and must be held to be invalid
Rules 1483 and 1493 contravene article 14 of the Constitu tion
It is difficult to understand on what ground employment by the Railways alone can be said to constitute a class by itself for the purposes of framing the impugned rules
If considerations of administrative efficiency or exigencies of service justify the making of such a rule such rules should have been framed in other departments also
The pleasure of the President has lost some of its majesty and power as it is controlled by the provisions of article 311
Rules of superannuation are based on considerations of life expectation mental capacity of civil servants having regard to climatic conditions under which they work and the nature of the work they do
They are not fixed on any ad hoc basis and do not involve the exercise of any discretion
They apply uniformly to all public servants falling under the category in respect of which they are framed
There can be no analogy between the rule of superannuation and rules 1483 and 1493 of the Code
If any rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service that rule would be invalid and the so called retirement ordered under the said rule would amount to removal of the civil servant within the meaning of article 3112
685 Where a rule is alleged to violate the constitutional guarantee afforded by article 3112 the argument of contract between the parties and its binding character is wholly inappropriate
Per Subba Rao J Rules 1483 and 1493 which confer a power on the appointing authority to remove a permanent servant on notice infringe the constitutional protection guaranteed a Government servant under articles 14 and 311 of the Constitution A permanent post and rules such as 1483 and 1493 cannot stand together and the latter must inevitably yield to the former
It is neither the phraseology nor the nomenclature given to the act of termination of service that is material but the legal effect of the action taken that is decisive in considering the question whether a Government servant is dismissed or not
Whether the services of a permanent Government servant are terminated by giving him 15 day s notice or whether his services are dispensed with before the age of superannuation by way of compulsory retirement under or outside a rule of compulsory retirement the termination deprives him of his title to the permanent post
If in the former case it amounts to dismissalin the latter caseit must be equally so
In both cases article 3112 is attracted
Compulsory retirement before age of superannuation is not an incident of tenure
It does not work automatically
It is not conceived in the interest of the employee
It is a mode of terminating his employment at the discretion of the appointing authority
As a matter of fact whatever the language used in that connection it is a punishment imposed on him
It not only destroys his title but also inevitably carries with it a stigma and hence such a termination is dismissal or removal within the meaning of article 311
A title to an office must be distinguished from the mode of its termination
If a person has title to an office he will continued to have it till he is dismissed or removed from there
Terms of statutory rules may provide for conferment of a title to an office and also for the mode of protecting it
If under such rules a person acquires title to an office whatever mode of termination is prescribed and whatever phraseology is used to describe it the termination is neither more nor less than a dismissal or removal from service and that inevitably attracts the provisions of article 311 of the Constitution
The argument that the mode of termination prescribed derogates from the title that otherwise would have been conferred on the employee mixes up two clear concepts of conferment of title and the mode of its deprivation
Article 311 is a constitutional protection given to Government servants who have title to office against their arbitrary and summary dismissal
Government cannot by rule evade the provisions of article 311
Parties also cannot contract themselves out of the constitutional provision Per Das Gupta J Rule 1483 does not contravene Art 3112
A railway servant to whom R 1483 applied has two 686 limitations put on his right to continue in service viz termination on attaining a certain age and termination of service on a notice under R 1483
Where service is terminated by order of retirement under R 2046 the termination is of a service where the servant has no right to continue and it is not removal or dismissal
Likewise when service is terminated by notice under R 1483 that termination is not removal or dismissal
The words removal  and dismissal  in article 311 mean and include only those terminations of service where a servant has acquired a right to continue in the post on the basis of terms and conditions of service and such other terminations where though there is no such right the order has resulted in loss of accrued benefits
Terminations of service which do not satisfy either of these two tests do not come within any of these words
Both articles 309 and 310 are subject to article 311
If any rule is made under article 309 as regards conditions of service of a Government servant in the matter of his dismissal or removal or reduction in rank it has to comply with the requirements of article 31 1
Before an order dismissing or removing or reducing a Government servant in rank is made by President or Governor in exercise of his pleasure President or Governor has to comply with the requirements of 3112
Under Art 310 all servants of the State hold office during the pleasure of the President or Governor as the case may be
That means that the officer has no right to be heard before his services are terminated
Article 311 provides an exception in the case of removal or dismissal
However R 1483 contravenes article 14 as it does not give any guidance for exercise of discretion by the authority concerned and hence is invalid
Per Shah JRules 1483 and 1493 do not infringe Art3112 or article 14of the Constitution
There is neither logic nor law in support of the contention that r 1483 contravenes article 3112
The termination of employment under r 1483does 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 a post is necessarily circumscribed by the conditions of employment which include r 1483
It also does not cast any stigma upon him
Mere determination of employment of a public servant whether he is a temporary employee a probationer a contractual appointee or appointed substantively to hold a permanent post will not attract the provisions of article 3112 unless the determination is imposed as a matter of punishment
A railway servant who has accepted employment on the conditions contained in the rules cannot after having obtained employment claim that the 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 687 condition prescribed by contract or statutory regulations is void as inconsistent with the constitutional safeguard
This exception is founded not on any right in the public servant to elect but on t invalidity of the covenant or regulation
There is no distinction between cases of termination of employment resulting from attaining the age of superannuation or from orders of compulsory retirement terminating temporary employment or employment on probation and orders terminating employment after notice under R 1483 An appointment to a public post is always subject to th 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 t hold the post till he dies
He acquires merely a right t hold the post subject to the rules
If employment is validly terminated the right to hold the post is determined even apart from th exercise of the pleasure of the President or the Governor
public servant cannot claim to remain in office so long as he is of good behavior
Such a concept of the tenure of a public servant s post is inconsistent with articles 309 and 310 of the Constitution
Rules 1483 and 1493 do not infringe article 14 of the Constitution
article 14 forbids class legislation but it does not forbid reasonable classification for the purpose of legislation
special conditions in which the railways have to operate and t interests of the nation which they serve justify the classification 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 article 14
It is true that R 1483 does not expressly provide for guidance to the authority exercising the power conferred by it 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 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 r 148 an assumption that the power may be exercised mala fide and on that ground discrimination may be practiced is wholly out of place
Because of the absence of specific directions in R 148 governing the exercise of authority conferred the by 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 importance of the efficient functioning of the rail transport in the interest of national economy and the 688 status of the authority invested with the exercise of power it may reasonably be assumed that the exercise of the power would appropriately be exercised for the protection of public interest or 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
Case law referred to