Civil Appeal No 755 of 1978
Appeal by Special Leave from the Order dated 21 10 1976 of the Bombay High Court Nagpur Bench in SCA No 426076
RK Garg Edward Faleire VJ Francis and DK Garg for the Appellant
RP Bhat and Girish Chandra for the Respondents
The Judgment of the Court was delivered by CHANDRACHUD CJ
The appellant Krishna Kumar was appointed on May 30 1966 as an Apprentice Mechanic Electrical after selection by the Railway Service Commission and on the completion of his training period he was appointed as a Train Examiner Electrical
On July 11 1974 he was appointed as a Train Lighting Inspector Nagpur under an order passed by the Chief Electrical Engineer
That the order of appointment was made by the CEE is undisputed and indeed there can be no controversy over it
The list of officer declared to be heads of departments shows that Chief Electrical Engineers are heads of their departments
By an order dated August 31 1976 the appellant was removed from service by respondent 1 the Divisional Assistant Engineer Central Railway Nagpur
The appellant thereupon filed a Writ Petition No 4260 of 1976 in the Bombay High Court to challenge the order of removal
A Division Bench of the Nagpur Bench of the High Court dismissed the Writ Petition summarily on October 21 1976
Being aggrieved by that order the appellant has filed this appeal by special leave
The Special Leave Petition came up before this Court on February 22 1978 when a Bench consisting of Justice VR Krishna Iyer and Justice Jaswant Singh adjourned the petition for four weeks in order to enable the respondents to file an affidavit stating as to i who appointed the petitioner with special reference to the designation of the Officer who made the order of appointment and ii who removed the petitioner from service with special reference to the designation of that Officer
Pursuant to that direction two affidavits were filed by Shri SP Sarathy Divisional Assistant Electrical Engineer Central Railway Nagpur
The petitioner filed his rejoinder affidavit on February 20 1978
On a consideration of these affidavits the Court on April 3 1978 granted special leave to the appellant to file this appeal
52 Article 311 1 of the Constitution provides that 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
The simple question for determination is whether as alleged by the appellant he was removed from service by an authority subordinate to that which had appointed him
The relevant facts are but these and these only The appellant was appointed as a Train Lighting Inspector under an order issued by the Chief Electrical Engineer and was removed from service under an order passed by the Divisional Assistant Electrical Engineer Central Railway Nagpur
The narrow question therefore for consideration is whether the Divisional Assistant Electrical Engineer is subordinate in rank to the Chief Electrical Engineer
None of the affidavits filed by Shri Sarathy who passed the order of removal says that the post of Divisional Assistant Electrical Engineer is equivalent to that of the Chief Electrical Engineer in the official hierarchy
That the former is not higher in rank than the latter is self evident
In the circumstances it seems clear that the appellant was removed from service by an authority which is subordinate in rank to that by which he was appointed
In defence of the legality of the order of removal counsel for the respondents relies on paragraph 2 of respondent 1 s affidavit dated January 7 1978 wherein he has stated that the power to make appointments to the post of the Train Lighting Inspector was delegated to certain other officers including the Divisional Assistant Electrical Engineer
It is urged that since the Div
Asstt
Elect
Engineer has been given the power to make appointments to the post of the Train Lighting Inspector he would have the power to remove any person from that post
We cannot accept this contention
Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment
It is at that point of time that the constitutional guarantee under article 311 1 becomes available to the person holding for example a civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to that which appointed him
The subsequent authorization made in favour of respondent 1 in regard to making appointments to the post held by the appellant cannot confer upon respondent 1 the power to remove him
On the date of the appellant s appointment as a Train Lighting Inspector respondent 1 had no power to make that appointment
He cannot have therefore the power to remove him
53 Besides delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate
An Officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another
The Divisional Engineer in other words does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latter s power to make appointments to certain posts has been delegated to him
Since the appellant was appointed by the Chief Electrical Engineer and has been removed from service by an order passed by respondent 1 who at any rate was subordinate in rank to the Chief Electrical Engineer on the date of appellant s appointment it must be held the respondent 1 had no power to remove the appellant from service
The order of removal is in patent violation of the provisions of Article 311 1 of the Constitution
For these reasons we allow the appeal set aside the order passed by the High Court and hold that the order dated August 31 1976 passed by respondent 1 removing the appellant from service is unconstitutional and therefore of no effect
The appellant must accordingly be deemed to continue in service until if so advised the government takes appropriate steps to bring his service to an end
Respondents will pay the costs of the appeal to the appellant
VDK Appeal allowed


Summary:
The appellant who was appointed as a Train Lighting Inspector Nagpur on July 11 1974 by the Chief Electrical Engineer was removed from service by respondent No 1 the Divisional Assistant Engineer Central Railway Nagpur by his order August 31 1976
The Writ Petition filed by the appellant in the Bombay High Court challenging the order of removal was dismissed summarily by a Division Bench of that Court
Allowing the appeal by special leave the Court  HELD 1
The order of removal is in patent violation of the provisions of Article 3111 of the Constitution
53C 2 article 3111 of the Constitution provides that 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
52A 3
Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment
It is at that point of time that the constitutional guarantee under article 3111 becomes available to the person holding for example a civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to that which appointed him
52 F G 4
Delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate
An officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another
53 A B The Divisional Assistant Electrical Engineer in the instant case does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latter s power to make appointments to certain posts has been delegated to him the subsequent authorisation made in favour of respondent in regard to making appointments to the post held by the appellant cannot confer upon respondent 1 the power to remove him
On the date of the 51 appellant s appointment as a Train Lighting Inspector respondent 1 had no power to make that appointment
He cannot have therefore the power to remove him
52H 53 A B