Civil Appeal No 65 of 1957
Appeal from the judgment and order dated January 1 1956 of the Punjab High Court Circuit Bench at Delhi in Letters Patent Appeal No 28 of 1955 arising out of the judgment and order dated April 15 1955 of the Single Judge of the Circuit Bench of the Punjab High Court in Civil Writ 332 No 36 D of 1955
A N Grover and P section Safeer for the appellant
R Ganapathy lyer and R H Dhebar for the Respondent
Frank Anthony and C P Aggarwala for the intervener
November 1
The judgment of section R Das C J Venkatarama Aiyar section K Das and A K Sarkar JJ was delivered by section R Das C J Bose J delivered a separate judgment
DAS C J
This appeal has been filed with a certificate of fitness granted by the Punjab High court on August 20
It is directed against the judgment and order passed by a Division Bench of that court on January 19 1956 in Letters Patent Appeal No 28 of 1955 reversing the judgment and order of Mr Justice Harnam Singh pronounced on April 15 1955 whereby his Lordship had allowed the appellant s application being Civil Writ No 36 D of 1955 and set aside the order passed by the General Manager Northern Railway on August 19 1953 reverting the petitioner from the post of Signal and Tele communication Engineer Telegraphs in Class II service where the appellant was officiating to his substantive post in Class III service
This appeal raises a very important question about the construction of article 311 of the Constitution
The facts are shortly as follows In August 1924 the appellant joined the railway service as a Signaller Telegraphist
As a result of selection he was promoted as Section Controller in 1942 and as Deputy Chief Controller in 1947 and as the Chief Controller in 1950
All these posts were in Class III service
On March 31 1951 seven candidates including the appellant appeared before a selection board constituted for selecting a candidate for the post of Assistant Superintendent Railway Telegraphs which was a gazetted post in Class 11 Officer s cadre
The appellant was selected out of the seven candidates for this post
On July 2 1951 a notice of appointment was issued from the headquarters of the East Punjab Railway 833 Delhi notifying that  Mr Parshotam Lal Officiating Chief Controller is appointed to officiate in Class II service as Asstt
Telegraphs Headquarters Office vice Mr Sahu Ram whose term of temporary re employment expires on the afternoon of 3rd July 1951 
The applicant actually relieved Mr Sahu Ram in the afternoon of July 3 1951
It appears that on April 28 1953 one Gouri Shankar SSTEIHd
made certain adverse remarks against the appellant in his confidential report for the year ending March 31 1953
This confidential report came before Shri section Sen CSTE on May 251953 who confirmed the views expressed by Shri Gouri Shankar and added his own opinion which was also adverse to the appellant
According to the usual practice obtaining in the office the aforesaid remarks were placed before the General Manager Shri Karnail Singh who on June 11 1953 remarked thereon as follows  I am disappointed to read these reports
He should revert as a subordinate till he makes good the short comings noticed in this chance of his as an officer
Portions underlined red to be communicated
 The adverse remarks against the appellant in the confidential report for the year ending March 31 1953 which were communicated to the appellant for his information by a confidential letter No E 106180 dated June 29 1953 were as follows  
He is however inclined to be hasty in his decisions
His office work is scrappy and does not show attention to detail
His relations with staff as well as officers have not been happy
He has displayed a tendency to resort freely to transfers and punishment of staff as a means of correcting their faults and in regard to officers has not maintained the proper tone and approach in official notings discussions and letters to Divisions
The above short comings have been brought to his notice on a number of occasions both in person and in writing without any improvement
 Remarks of Shri section Sen CSTE 
   This officer suffers from an inflated 834 idea of self importance
His ways and manners require radical change if he desires to have a successful career as an officer
 Remarks of the General Manager
I am disappointed to read these reports     On July 24 1953 the appellant who had by this time earned two increments on July 4 1952 and July 4 1953 made a representation against the remarks made against him
On August 19 1953 however notice No 940 E14 EIA was issued by the General Manager P to the following effect  Shri Bishambar Nath Chopra Instructor Railway Training School Saharnpur is transferred to Headquarters office and appointed to officiate in Class 11 service as Assistant Signal and Tele communication Engineer Telegraphs vice Shri Parshotam Lal Dhingra who on relief reverts to Class III appointment
 The appellant on August 20 1953 appealed to the General Manager for reconsideration and thereafter on October 19 1953 appealed to the Railway Board and made a representation also to the President of India
On February 2 1955 the Railway Board wrote to the General Manager as follows With reference to your letter No 3780 dated the 30th December 1953 the Board desires that you should inform Shri Parshotam Lal Dhingra that his reversion for generally unsatisfactory work will stand but that this reversion will not be a bar to his being considered again for a promotion in the future if his work and conduct justify
He should also be informed that he has in his representation used language unbecoming of a senior official and that he should desist from this in future
You may watch his work up to the end of March 1955 and judging from his work and conduct you may treat him as eligible for being considered for promotion as Assistant Transportation Superintendent in the Selection that may be made after March 1955
 This was communicated to the petitioner on February 17 1955
835 In the meantime the petitioner had on February 9 1955 filed his writ petition under article 226 of the Constitution
Mr Justice Harnam Singh took the view that the petitioner had been punished by being reduced in rank without being given an opportunity to show cause against the action proposed to be taken in regard to him and that consequently the order was invalid for non compliance with the provisions of article 311 2 of the Constitution
On a Letters Patent Appeal filed by the Union of India a Division Bench Bhandari C J and Falshaw J reversed the order of Harnam Singh J and dismissed the petitioner s writ application
The High Court having subsequently certified that it was a fit case for appeal to this Court the petitioner has now come up on appeal before us and the question for our decision is whether the order passed by the General Manager on August 19 1953 amounted to a reduction in rank within the meaning of article 311 2 of the Constitution for if it did then the order must be held to be invalid as the requirements of that article had admittedly not been compli ed with
Under the English Common Law all servants of the Crown held office during the pleasure of the Crown and were liable to be dismissed at any time and without any reason being assigned for such dismissal
No action lay against the Crown in respect of such dismissal even though it were contrary to the express term of the contract of employment for the theory was that the Grown could not fetter its future executive action by entering into a contract in matters which concerned the welfare of the State
A servant of the Crown could not at Common Law sue the Crown even for the arrears of his salary and his claim could be only on the bounty of the Crown
The established notion was that the implied condition between the Crown and its servant was that the latter held his office during the pleasure of the Crown no matter whether it had been referred to when the engagement had been made or not and that public policy demanded this qualification
See per Lord Blackburn in 106 836 Mulvenna vs The Admiralty1
This rule was applied in full force in Lucas vs Lucas and High Commissioner for India 2 where it was held that the sterling overseas pay of an Indian Civil Servant was not a debt which could be attached in satisfaction of an order for the payment of alimony
In the State of Bihar v Abdul Majid 3 however this Court held for reasons stated in the judgment delivered by Mahajan C J that the Indian Law has not adopted the rule of English Law on the subject in its entirety
Turning to our Statute Law we find that in the Government of India Act 1915 5  6 Geo
V Ch
61  as originally enacted there was no reference to this doctrine of the English Common Law
By section 45 of the Government of India Act 1919 9  10 Geo
V Ch 101 read with Part I of the second schedule to that Act several sections including section 96 B were introduced into the Government of India Act 1915 hereinafter called the  1915 Act
The relevant portion of section 96 B was as follows  96 B 1
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 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 and the Secretary of State in Council may except so far as he may provide by rules to the contrary re instate any person in that service who has been dismissed
 Sub section 2 of that section empowered 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 and sub section 4 declared that all service rules then in force had been duly made and confirmed the same
The point to be noted is that section 96 B for the first time gave a statutory recognition and force to the English Common 1 3  2 837 Law rule that the servants of the Crown held their Offices during the pleasure of the Crown and at the same time imposed one important qualification upon the exercise of the Crown s pleasure namely that a servant might not be dismissed by an authority sub ordinate to that by which he had been appointed
Section 96 B 1 was reproduced as sub sections
1 and 2 of section 240 of the Government of India Act 1935 26 Geo
V Ch
II hereinafter referred to as the 1935 Act and a new sub section was added to section 240 as sub section
The relevant portions of section 240 of the 1935 Act are set out below  240 1 Except as expressly provided by this Act every person who is a member of a Civil service of the Crown in India or holds any civil post under the Crown in India holds office during His Majesty s pleasure
2 No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed
3 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 Then followed a proviso which made sub section
3 inapplicable to certain persons and then came sub section
4 providing for compensation for premature termination of employment in certain cases which it is not necessary to set out here
The rule making power given by section 96 B 2 of the 1915 Act was reproduced in section 241 of the 1935 Act
Section 276 of the 1935 Act like section 96 B 4 of the 1915 Act continued in force all the rules made under the last mentioned Act while the existing laws were continued by section 292
It should be noted that the opening words of section 96 B 1 namely Subject to the provisions of this Act and the rules made thereunder  were substituted by the words  Except as expressly provided by this Act
 The effect of this will be discussed hereafter
Subsection 1 adopted the English Common Law rule regarding the pleasure of the Crown but imposed on it 838 two qualifications by two separate sub sections
Subsection 2 reproduced the qualification which had been imposed by section 96 B 1 namely that a servant of the class therein mentioned must not be dismissed by an authority subordinate to that by which he had been appointed and sub section
3 introduced a still more important qualification on the exercise of the Crown s pleasure namely that no such servant must be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him
Reduction in rank was not referred to in section 96 B 1 but was for the first time added to dismissal in sub section
Then came our Constitution on January 26 1950
Part XIV deals with  Services under the Union and the States
Chapter I contains seven sections grouped under the heading  Services
Section 2401 of the 1935 Act has been substantially reproduced in article 310 1 and sub sections
2 and 3 of section 240 have become article 3111 and 2 while section 276 of the 1935 Act which continued the existing rules in force has been embodied in article 313
Article 3101 and article 311 omitting the proviso to cl
2 are as follows  310 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 any 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 of the State
311 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 St ate 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 povided         839 3 If any question arises whether it is reasonably practicable to give any person an opportunity of showing cause under clause 2 the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank as the case may be shall be final
 To summarise As under section 96 B1 of the 1915 Act and section 2401 of the 1935 Act the persons specified therein held office during the pleasure of the Crown so under article 3101 they hold their office during the pleasure of the President or of the Governor as the case may be
The opening words of article 3101 namely Except as expressly provided by this Constitution reproduce the opening words of section 2401 of the 1935 Act substituting the word  Constitution  for the word  Act 
The exceptions contemplated by the opening words of article 3101 quite clearly refer inter alia to articles 124 148 218 and 324 which respectively provide expressly that the Supreme Court Judges the Auditor General the High Court Judges and the Chief Election Commissioner shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by the requisite majority therein specified has been presented to him in the same session for such removal on the ground of proved misbehaviour or incapacity
These are clearly exceptions to the rule embodied in article 3101 that public servants hold their office during the pleasure of the President or the Governor as the case may be
Subject to these exceptions our Constitution by article 3101 has adopted the English Common Law rule that public servants hold office during the pleasure of the President or Governor as the case may be and has by article 31 1 imposed two qualifications on the exercise of such pleasure
Though the two qualifications are set out in a separate article they quite clearly restrict the operation of the rule embodied in article 3101
In other words the provisions of article 311 operate as a proviso to article 3101
All existing laws have been continued by article 372 some of which eg the Code of Civil Procedure make it possible for a public servant to enforce his claims 840 against the State
It has accordingly been held by this Court in the State of Bihar vs Abdul Majid supra that the English Common Law rule regarding the holding of office by public servants only during the pleasure of the Crown has not been adopted by us in its entirety and with all its rigorous implications
Passing on to article 311 we find that it gives a two fold protection to persons who come within the article namely 1 against dismissal or removal by an authority subordinate to that by which they were appointed and 2 against dismissal or removal or reduction in rank without giving them a reasonable opportunity of showing cause against the action proposed to be taken in regard to them
Incidentally it will be noted that the word removed  has been added after the word dismissed
in both cls
1 and 2 of article 311
Upon article 311 two questions arise namely a who are entitled to the protection and b what are the ambit and scope of the protection  Re a Articles 310 and 311 are two of the articles which have been grouped under the heading Services in Chapter I of Part XIV which deals with the Services under the Union and the States
It is well known that there are different species of Government services
In the absence of a contract to the contrary the terms of employment of persons in different services are governed by rules made by the appropriate authorities to which reference will hereafter be made
The strength of a service or a part of a services actioned as a separate unit is in the Fundamental Rules section 111 ch 11 r 94 called the cadre
Each cadre consists of a certain number of posts
According to r 922 of the Fundamental Rules a permanent post means a post carrying a definite rate of pay sanctioned without limit of time
In each cadre there may be and often is a hierarchy of ranks
Due to rush of business or other exigencies some temporary posts are often created
A temporary post is defined in r 930 to mean a post carrying a definite rate of pay sanctioned for a limited time
These temporary posts are very often outside the cadre and are usually for one year and are renewed from year to year although some of them may be 841 created for a certain specified period
The conditions of service of a Government servant appointed to a post permanent or temporary are regulated by the terms of the contract of employment express or implied and subject thereto by the rules applicable to  the members of the particular service
The appointment of a Government servant to a permanent post 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
This lien is defined in Fundamental Rule section 111 ch 11 r 913 as the title of a Government servant to hold substantively a permanent post including a tenure post to which he has been appointed substantively
The Government cannot terminate his service unless it is entitled to do so 1 by virtue of a special term of the contract of employment eg by giving the requisite notice provided by the contract or 2 by the rules governing the conditions of his service eg on attainment of the age of superannuation prescribed by the rules or on the fulfilment of the conditions for compulsory retirement or subject to certain safeguards  on the abolition of the post or on being found guilty after a proper enquiry on notice to him of misconduct negligence inefficiency or any other disqualification  An appointment to a permanent post in Government service on probation means as in the case of a person appointed by a private employer that the servant so appointed is taken on trial
The period of probation may in some cases be for a fixed period eg for six months or for one year or it may be expressed simply as on probation without any specification of any period
Such an employment on probation under the ordinary law of master and servant comes to an end if during or at the end of the probation the servant so appointed on trial is found unsuitable and his service is terminated by a notice
An appointment to officiate in a permanent post is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive 842 appointment has yet been made to that post
Such an officiating appointment comes to an end on the return of the incumbent substantively holding the post from leave in the former case or on a substantive appointment being made to that permanent post in the latter case or on the service of a notice of termination as agreed upon or as may be reasonable under the ordinary law
It is therefore quite clear that appointment to a permanent post in a Government service either on probation or on an officiating basis is from the very nature of such employment itself of a transitory character and in the absence of any special contract or specific rule regulating the conditions of the service the implied term of such appointment under the ordinary law of master and servant is that it is terminable at any time
In short in the case of an appointment to a permanent post in a Government service on probation or on an officiating basis the servant so appointed does not acquire any substantive right to the post and consequently cannot complain any more than a private servant employed on proba tion or on an officiating basis can do if his service is terminated at any time
Likewise an appointment to a temporary post in a Government service may be substantive or on probation or on an officiating basis
Here also in the absence of any special stipulation or any specific service rule the servant so appointed acquires no fight to the post and his service can be terminated at any time except in one case namely when the appointment to a temporary post is for a definite period
In such a case the servant so appointed acquires a right to his tenure for that period which cannot be put an end to unless there is a special contract entitling the employer to do so on giving the requisite notice or the person so appointed is on enquiry held on due notice to the servant and after giving him a reasonable opportunity to defend himself found guilty of misconduct negligence inefficiency or any other disqualification and is by way of punishment dismissed or removed from service or reduced in rank
The substantive appointment to a temporary post under the rules used to give the servant so appointed 843 certain benefits regarding pay and leave but was otherwise on the same footing as appointment to a temporary post on probation or on an officiating basis that is to say terminable by notice except where under the rules promulgated in 1949 to which reference Will hereafter be made his service had ripened into what is called a quasi permanent service
The position may therefore be summarised as follows 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
An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is by way of punishment dismissed or removed from the service
Except in these two cases the appointment to a post permanent or temporary on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the Post and his srvice may be terminated unless his service had ripened into what is in the service rules called a quasi permanent service
The question for our consideration is whether the protections of article 311 are available to each of these several categories of Government servants
A number of decisions bearing on the question of construction of articles 310 and 311 have been cited before us which indicate that there is some difference of opinion between the Judges of the different High Courts and in some cases amongst the Judges of the same High Court
Thus it has been held in some cases that articles 310 and 311 do not make any distinction between Government servants who are employed in permanent posts and those who are employed in 107 844 temporary posts
See Jayanti Prasad vs The State of Uttar Pradesh 1 0
P Oak vs The State of Bombay2 Kishanlal Laxmilal vs The State of Madhya Bharat 3 Gopi Kishore Prasad vs The State of Bihar 4 Punit lal Saha vs The State of Bihar5 and Yusuf Ali Khan vs Province of the Punjab6
On the other hand it has been held in some cases that a Government servant cannot be deemed to be a member of a service unless he is permanently absorbed therein nor can he be deemed to be a holder of such post unless he holds it permanently and that such a Government servant is not entitled to claim the benefit of article 311
See Laxminarayan Chiranjilal Bhargava vs The Union of India 7 Engnneer in Chief Army Head Quarters vs C A Gupta Ram 8 State of Punjab vs section Sukhbans Singh 9 and Chironjilal vs Union of India 10
The cases cited before us also indicate that the preponderance of view is that only a dismissal or removal or reduction in rank by way of penalty attracts the operation of article 311 2 but that a termination of service brought about otherwise than by way of punishment eg by the exercise of the right under the terms of employment or under the relevant rules regulating the conditions of service which form part of the terms of employment does not
See Jayanti Prasad vs The State of Uttar Pradesh supra Shrinivas Ganesh vs Union of India 11 Jatindra Nath Biswas vs R Gupta 12 Rabindra Nath Das vs The General Manager Eastern Railway 13 Jatindra Nath Mukherjee vs The Government of the Union of India Ahmad Sheikh vs Ghulam Hassan 15 Ganesh Balkrishna Deshmukh vs The State of Madhya Bharat 16 D P Ragunath vs The State of Coorg 17 M V Vichoray vs The State of Madhya Pradesh 18 Kamta Charan Srivastava vs Post Master General 19 and Sebastian vs State
The cases I AIR 1951 All 7932 AIR 1957 Bom
3 AIR 1956 M B 1oo4 AIR 1955 Pat372
5 AIR 1957 Pat
3576 AIR 1950 Lah
7 11
R A I R 1956 Nag8 AIR 1957Punj
9 AIR 1957 Punj
19111310 AIR 1957 Raj
11 LR 58 Bom
673 AIR 1956 Bom
45512 AIR 1954 Cal
13 14 1957 611CWN 815
15 AIR 1957 J  K xi16 AIR 1956 MB 172
17 AIR 1957 Mys
18 Al
R 1952 Nag
19 AIR 1955 Pat
3812o AIR 1955 Tr
Co 12 845 however do not lay down or clearly indicate any test for ascertaining whether in any particular case a termination of service is inflicted by way of penalty so as to amount to dismissal removal or reduction in rank within the meaning of article 311 2 or is brought about by the exercise of the right to terminate it arising out of the terms of employment agreed upon between the parties or contained in rules regulating the conditions of service subject to which the employment was made
Further a certain amount of confusion arises because of the indiscriminate use of the words temporary Cc provisional   officiating  and  on probation 
We therefore consider it right to examine and ascertain for ourselves the scope and effect of the relevant provisions of the Constitution
Article 311 does not in terms say that the protections of that article extend only to persons who are permanent members of the services or who hold permanent civil posts
To limit the operation of the protective provisions of this article to these classes of persons will be to add qualifying words to the article which will be
contrary to sound principles of interpretation of a Constitution or a statute
In the next place el
2 of article 311 refers to such person as aforesaid and this reference takes us back to cl
1 of that article which speaks of a  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
These persons also come within article 3 101 which besides them also includes persons who are members of a defence service or who hold any post connected with defence
Article 310 also is not in terms  confined to persons who are permanent members of the specified services or who hold permanent posts connected with the services therein mentioned
To hold that that article covers only those persons who are permanent members of the specified services or who hold posts connected with the services therein mentioned will be to say that persons who are not permanent members of those services or who do not hold permanent posts therein do not hold their respective offices during the pleasure of the President 846 or the Governor as the case may be a proposition which obviously cannot stand scrutiny
The matter however does not rest here
Coming to article 31 1 it is obvious that if that article is limited to persons who are permanent members of the services or who hold permanent civil posts then the constitutional protection given by cls
1 and 2 will not extend to persons who officiate in a permanent post or in a temporary post and consequently such persons will be liable to be dismissed or removed by an authority subordinate to that by which they were appointed or be liable to be dismissed removed or reduced in rank without being given any opportunity to defend themselves
The latter classes of servants require the constitutional protections as much as the other classes do and there is nothing in the language of article 311 to indicate that the Constitution makers intended to make any distinction between the two classes
There is no apparent reason for such distinction
It is said that persons who are merely officiating in the posts cannot be said to  hold  the post for they only perform the duties of those posts
The word  hold  is also used in articles 58 and 66 of the Constitution
There is no reason to think that our Constitution makers intended that the disqualification referred to in cl
2 of the former and cl
4 of the latter should extend only to persons who substantively held permanent posts and not to those who held temporary posts and that persons officiating in permanent or temporary posts would be eligible for election as President or Vice President of India
There could be no rational basis for any such distinction
In our judgment just as article 310 in terms makes no distinction between permanent and temporary members of the services or between persons holding permanent or temporary posts in the matter of their tenure being dependent upon the pleasure of the President or the Governor so does article 311 in our view make no distinction between the two classes both of which are therefore within its protections and the decisions holding the contrary view cannot be supported as correct
Re b  Clause 1 of article 311 is quite explicit and 847 hardly requires discussion The scope and the ambi of that protection are that Government servants of the kinds referred to therein are entitled to the judgmen of the authority by which they were appointed or some authority superior to that authority and that the should not be dismissed or removed by a lesser authority in whose judgment they may not have the same faith
The underlying idea obviously is that a provision like this will ensure to them a certain amount of security of tenure
Clause 2 protects Government servant against being dismissed or removed or reduced in rank without being given a reasonable opportunity of showing cause against the action proposed to be taken in regard to them
It will be noted that in cl
1 the words  dismissed  and  removed  have been used while in cl
2 the words  dismissed   removed  and  reduced in rank  have been used
The two protections are 1 against being dismissed or removed by an authority subordinate to that by which the appointment had been made and 2 against being dismissed removed or reduced in rank without being heard
What then is the meaning of those expressions  dismissed   removed  or  reduced in rank  It has been said in Jayanti Prasad vs The State Of Uttar Pradesh supra that these are technical words used in cases in which a person s services are terminated by way of punishment
Those expressions it is urged have been taken from the service rules where they were used to denote the three major punishments and it is submitted that those expressions should be read and understood in the same sense and treated as words of article This leads us to embark upon an examination of the service rules relating to punishments to which the Government servants can be subjected
Rule 418 of the Civil Service Regulations of 1902 hereinafter called the 1902 Rules provide inter alia that the removal of public servants from the service for misconduct insolvency inefficiency not due to age or failure to pass a prescribed examination entailed forfeiture of past services
Those 1902 Rules however did not Bay under what circumstances or in what 848 manner and by which authority public servants could be removed
In exercise of the powers conferred by section 96 B2 of he 1915 Act the Secretary of State in Council framed the Civil Service Governor s Provinces Classification Rules hereinafter referred to as the 1920 Classification Rules which came into force in December 1920 and were applicable to Government servants serving in the Governor s Provinces
Rule X of these 1920 Classification Rules laid down that a local Government might for good and sufficient reasons 1 censure 2 reduce to a lower post 3 withhold promotion from or 4 suspend from service any officer of an all India service provided that no head of the department appointed with the approval of the Governor General in Council would be reduced to a lower post without the sanction of the Governor General in Council
Likewise r XIII provided that without prejudice to the provisions of any law for the time being in force the local Government might for good and sufficient reasons 1 censure 2 withhold promotion from 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
Rule XIV laid down the procedure in cases of dismissal removal or reduction in the following terms  Rule XIV Without prejudice to the provisions of the Public Servants Inquiries Act 1850 in all cases in which the dismissal removal or reduction of any officer is ordered the order shall except when it is based on facts or conclusions established at a judicial trial or when the officer concerned has absconded with the accusation hanging over him be preceded by a properly recorded departmental enquiry
At such an enquiry a definite charge in writing shall be framed in respect of each offence and explained to the accused the evidence in support of it and any evidence which he may adduce in his defence shall be recorded in his presence and his defence shall be taken down in writing
Each of the charges framed shall be discussed and a finding shall be recorded on each charge  Thus we find that these 1920 Classification Rules 849 enumerated the different kind  of punishments that could be inflicted on the different classes of Government servants and elaborately prescribed the procedure which had to be followed before those punishments could be inflicted
The Secretary of State in Council also promulgated with effect from January 1 1922 what are known and what will hereafter be referred to as the Fundamental Rules governing the conditions of service leave pay and pension of all Government servants whose pay was debitable to civil estimates in India and to any other class of Government servants in India to which the Secretary of State in Council might by general or special order declare them to be applicable
Like r 418 of the 1902 Rules r 52 of the Fundamental Rules provided that the pay and allowances of Government servants who were dismissed or removed from service would cease from the day of such dismissal or removal
Thus the penal consequences of loss of pay and allowances continued to follow dismissal or removal
On May 27 1930 the Secretary of State for India in Council in exercise of the powers conferred by section 96 B2 of the Government of India Act 1919 made the Civil Services Classification Control and Appeal Rules hereinafter called the 1930 Classification Rules which superseded the 1920 Classification Rules
The 1930 Classification Rules by r 3 applied to every person in the whole time civil employment of a Government in India other than a person so employed only occasionally or sub ject to discharge at less than one month s notice except certain classes of persons therein specified which included inter alia railway servants
Under r 14 the public services in India were classified under six heads namely 1 All India Services 2 Central Services Class I 3 Central Services Class II 4Provincial Services 5 Specialist Services and 6 the Subordinate Services
Under r 15 read with sch
I the following were the all India services I Indian Civil Service 2 Indian Police Service 3 Indian Agricultural Service 4 Indian Educational Service 850 5 Indian Forest Service 6 Indian Forest Engineering Service 7 Indian Medical Service 8 Indian Service of Engineers 9 Indian Veterinary Service and 10 Indian General Service
The Indian Railway Service was not included in the list
Rule 49 as originally framed provided as follows 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 class 1 to 5 specified in rule 14 namely i Censure ii Withholding of increments or promotion including stoppage at an efficiency bar 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 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
 The Explanation to r 49 was amended on March 28 1948 on February 28 1950 and finally on January 28 1955 when the Explanation was numbered as Explanation I and the words in cl
ii of r 49 namely  including stoppage at an efficiency bar were deleted and Explanation II was added
So amended the Explanations read as follows  Explanation I 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 851 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 promotion within the meaning of this rule
 Like r XIV of the 1920 Classification Rules r 55 of the 1930 Classification Rules as originally framed in 1930 provided that without prejudice to the Public Servants Enquiries Act 1850 no order of dismissal removal or reduction should be passed on a member of a service other than an order passed on facts which had led to his conviction in a criminal court or by a court martial unless he had been informed in writing of the grounds on which it was proposed to take action and had been afforded an adequate opportunity of defending himself Detailed provisions were made as to the grounds on which it was proposed to take action being reduced to the form of a definite charge or charges and for the communication thereof to the officer together with a statement of the allegations on which each charge was based and further provisions were made as to the procedure relating to the filing of the defence the right to cross examine and to give evidence in person or to have such witnesses called as he might wish to examine in his defence
Thus in the 1930 Classification Rules as in the 1920 Classification Rules were enumerated the different kinds of punishments which could be inflicted on the Government servants of the class to which those rules were applicable and out of those varieties of punishments mentioned in r 49 three of them namely dismissal removal and reduction in rank were treated as major punish ments and some special procedural protection was prescribed in the interest of the Government servants
At the date of the commencement of the Constitution the railway servants were governed by a separate set 108 852 of rules collected in the two volumes of the Indian Railway Establishment Code
The petitioner is a railway servant and as such is governed by the rules of the Indian Railway Code
Chapter XVII which is in Volume I regulated the conduct and discipline of the railway servants and the Railway Fundamental Rules collected in Volume 11 regulated their conditions of service pay and deputation
These are similar to and are in pari materia with the 1930 Classification Rules
Rule 1702 of Chapter XVII prescribes eleven distinct penalties which may for good and sufficient reasons be imposed upon railway servants namely 1 censure 2 withholding of the privilege of passes andor privilege ticket order 3 fines including forfeiture or reduction of running allowances in the case of train and running staff 4 withholding of increments or promotion including stoppage at an efficiency bar 5 reduction to a lower post or time scale or to a lower stage in a time scale 6 recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders 7 suspension 8 removal from the service 9 dismissal from the service 10 withholding of the whole or part of Provident Fund and Gratuity Rules Chapters XIII and XV and 11 reducing or withholding the maximum pension admissible in accordance with the provisions of the rules governing the grant of pensions
There is a Note below this rule to the effect that the discharge a of a person appointed on probation during the period of probation b of a person engaged under contract for a specific period on the expiration of such period in accordance with the terms of his contract c of a person appointed in a temporary capacity otherwise than under a contract in accordance with the general conditions of service applicable to temporary employment and of some other persons enumerated therein do not amount to removal or dismissal within the meaning of r 1702
Rule 1703 states that while dismissal from service disqualifies a railway servant from future employment removal from service is not to be considered an absolute disqualification
Rule 1704 specifies the  authority 853 competent to impose penalties
Rule 1706 enumerates the causes for which a railway servant may be dismissed from service namely 1 conviction by a criminal court or by a court martial 2 serious misconduct 3 neglect of duty resulting in or likely to result in loss to Government or to a Railway administration or danger to the lives of persons using the railway or 4 insolvency or habitual indebtedness and 5 obtaining employment by the concealment of his antecedents which would have prevented his employment in railway service had they been known before his appointment to the authority appointing him
Procedure for dismissal is set out in r 1707
Removal from Service is dealt with by r 1708 and the procedure for removal is regulated by r 1709
Suspension is the subject matter of r 1711 and the procedure for imposing the other penalties is contained in r 1712
Reduction to lower post is governed by r 1714 which enjoins that when a railway servant is reduced for inefficiency or misconduct to a lower post in timescale or to a lower grade or to a lower stage in a time scale the authority ordering the reduction must state the period for which it will be effective and whether on the expiry of that period it will operate to postpone future increments or to affect the railway servant s seniority and if so to what extent
Rule 2310 provides that no pension is to be granted to an officer dismissed or removed for misconduct insolvency or inefficiency although compassionate allowances may be granted in deserving cases
Thus the Indian Railway Establishment Code also like the 1930 Classification Rules provides for different punishments and the procedure to be followed for inflicting the same and the three graver punishments of dismissal removal and reduction are dealt with separately and special provisions are made regulating the procedure which must be followed before those graver forms of punishments can be inflicted
In exercise of the powers conferred by sub section
2 of section 241 of the 1935 Act the Governor General made certain rules called the Central Civil Service Temporary Service Rules 1949 hereinafter referred to as 854 the 1949 Temporary Service Rules
These rules applied to all persons who held a civil post under the Government of India and who were under the rulemaking control of the Governor General but who did not hold a lien on any post under the Government of India or any Provincial Government but they did not apply to several categories of persons including the railway servants
By those rules some protection had been given even to persons who did not substantively hold permanent posts
Thus under r 6 the services of those persons whose services had ripened into what was therein defined as quasi permanent service could only be terminated in the same circumstances and in the same manner as those of Government servants in permanent service could be terminated or when the appointing authority certified that reduction had occurred in the number of posts available to Government servants not in temporary service
Further protection was given by the two provisos to that rule
By r 5 however the employment of persons holding temporary service could be terminated at any time by a month s notice
Just to complete the history of the service rules reference may be made to the all India Service Discipline and Appeal Rules 1955 which were promulgated by the Central Government in September 1955 after consultation with the State Governments
For our present purpose it is enough to say that rr 49 and 55 of the 1930 Classification Rules were substantially reproduced in rr 3 and 5 respectively of these 1955 Rules except that the Explanation to r 49 has been elaborated and the results of the judicial decisions have been incorporated therein
In exercise of powers conferred by article 309 and article 148 5 of the Constitution the President on February 28 1957 made the Central Civil Services Classification Control and Appeal Rules 1957
Rule 13 of these Rules corresponds to r 49 of the 1930 Classification Rules and r 3 of the 1955 Rules and r 15 substantially reproduces r 55 of the 1930 Classification Rules and r 5 of the 1955 Rules
The scheme of the Service Rules may now be broadly summarised as follows They enumerated different 855 punishments which for good and sufficient reason might be inflicted on Government servants and they prescribed special procedure which had to be followed before the three major punishments of dismissal removal or reduction in rank could be meted out to the Government servants
Thus rr
X and XIII of the 1920 Classification Rules prescribed several kinds of punishments to which the different classes of Government servants could be subjected and r XIV of those rules laid down certain special procedure for cases in which the three major punishments of dismissal removal or reduction of an officer were contemplated
Likewise r 49 of the 1930 Classification Rules reproduced with some additions the punishments prescribed in rr
X and XIII and r 55 of the 1930 Classification Rules provided similar procedural protection as had been prescribed by r XIV of the 1920 Classification Rules before the punishments of dis missal removal or reduction in rank could be inflicted
The scheme of the rules applicable to the railway servants was similar in substance
Thus rr 1702 to 1714 and 2310 of the Indian Railway Code substantially reproduce the provisions of rr 49 and 55 of the 1930 Classification Rules
In short the service rules out of the several categories of punishments selected the three graver punishments of dismissal removal and reduction in rank and laid down special procedure for giving protection to the Government servants against the infliction of those three major punishments
It will be recalled that the opening words of section 96 B 1 of the 1915 Act were  Subject to the provisions of this Act and the Rules made thereunder  and subs
4 confirmed the service rules that were then in force
In spite of this it was held in R Venkata Rao vs Secretary of State for India 1 with reference to the rules made under section 96 B of the 1915 Act that while that section assured that the tenure of office though at pleasure would not be subject to capricious or arbitrary action but would be regulated by the rules it gave no right to the appellant enforceable by action to hold his office in accordance with those rules
It I 1936 LR 64 IA 55
856 was held that section 96 B of the 1915 Act and the rules made thereunder only made provision for the redress of grievances by administrative process
As if to reinforce the effect of that decision the opening words quoted above were in section 2401 of the 1935 Act replaced by the words  Except as expressly otherwise provided by this Act
The position of the Government servant was therefore rather insecure for his office being held during the pleasure of His Majesty under the 1915 Act as well as under the 1935 Act the rules could not over ride or derogate from the statute and the protection of the rules could not be enforced by action so as to nullify the statute itself
The only protection that the Government servant had was that by virtue of section 96 B1 they could not be dismissed by an authority subordinate to that by which they were appointed
The position however improved to some extent under the 1935 Act which by section 2403 gave a further protection in addition to that provided in section 2402 which reproduced the protection of section 96 B1 of the 1915 Act
In other words the substance of the protection provided by r 55 of the 1930 Classification Rules which required a special procedure to be followed before the three major punishments of dismissal removal or reduction in rank out of the several punishments enumerated in r 49 was bodily lifted as it were out of the Rules and embodied in the statute itself so as to give a statutory protection to the Government servants
These statutory protections have now become constitutional protections as a result of the reproduction of the provisions of section 240 in articles 310 and 311 of our Constitution
It follows from the above discussion that both at the date of the commencement of the 1935 Act and of our Constitution the words  dismissed   removed  and  reduced in rank  as used in the service rules were well understood as signifying or denoting the three major punishments which could be inflicted on Government servants
The protection given by the rules to the Government servants against dismissal removal or reduction in rank which could not be en
forced by action was incorporated in sub sections
1 and 857 2 of section 240 to give them a statutory protection by indicating a procedure which had to be followed before the punishments of dismissal removal or reduction in rank could be imposed on them and which could be enforced in law
These protections have now been incorporated in article 311 of our Constitution
The effect of section 240 of the 1935 Act reproduced in articles 310 and 311 as explained by this Court in section A Venkataraman vs The Union of India 1 has been to impose a fetter on the right of the Government to inflict the several punishments therein mentioned
Thus under article 3111 the punishments of dismissal or removal cannot be inflicted by an authority subordinate to that by which the servant was appointed and under article 3112 the punishments of dismissal removal and reduction in rank cannot be meted out to the Government servant without giving him a reason
able opportunity to defend himself
The principle embodied in article 3101 that the Government servants hold office during the pleasure of the President or the Governor as the case may be is qualified by the provisions of article 311 which give protection to the Government servants
The net result is that it is only in those cases where the Government intends to inflict those three forms of punishments that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him
It follows therefore that if the termination of service if 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 and the decisions cited before us and referred to above in so far as they lay down that principle must be held to be rightly decided
The foregoing conclusion however does not solve the entire problem for it has yet to 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 1  I50 858 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
Again where a person is appointed to a temporary post for a fixed term of say five years his service cannot 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 in
efficiency 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
Further take the case of a person who having been appointed temporarily to a post has been in continuous service for more than three years or has been certified by the appoint ing authority as fit for employment in a quasipermanent capacity such person under r 3 of the 1949 Temporary Service Rules is to be deemed to be in quasi permanent service which under r 6 of those Rules can be terminated i in the circumstances and in the manner in which the employment of a Government servant in a permanent service can be terminated or ii when the appointing authority certifies that a reduction has occurred in the number of posts available for Government servants not in permanent service
Thus when the service of a Government servant holding a post temporarily ripens into a quasi permanent service as defined in the 1949 Temporary Service Rules he acquires a right to the post although his appointment was initially temporary and therefore 859 the termination of his employment otherwise than in accordance with r 6 of those Rules will deprive him of his right to that post which he acquired under the rules and will prima facie be a punishment and regarded as a dismissal or removal from service so as to
attract the application of article 311
Except in the three cases just mentioned a Government servant has no right to his post and the termination of service of a Government servant does not except in those cases amount to a dismissal or removal by way of punishment
Thus where a person is appointed to a permanent post in a Government service on probation the termination of his service during or at the end of the period of probation will not ordinarily and by itself be a punishment for the Government servant so appointed has no right to continue to hold such a post any more than the servant employed on probation by a private employer is entitled to do
Such a termination does not operate as a forfeiture of any right of the servant to hold the post for he has no such right and obviously cannot be a dismissal removal or reduction in rank by way of punishment
This aspect of the matter is recognised in the Explanation to r 49 of the 1930 Classification Rules which correspond to the Note to r 1702 of the Indian Railway Code and r 3 of the 1955 Rules and r 13 of the 1957 Rules for all those rules expressly say that the termination of such an appointment does not amount to the punishment of dismissal or removal within the meaning of those rules
Likewise if the servant is appointed to officiate in a permanent post or to hold a temporary post other than one for a fixed term whether substantively or_on probation or on an officiating basis under the general law the implied term of his employment is that his service may be terminated on reasonable notice and the termination of the service of such a servant will not per se amount to dismissal or removal from service
This principle also has been recognised by the Explanations to r 49 of the 1930 Classification Rules correspoding to the Note to r 1702 of the Indian Railway Code and r 5 of the 1949 Rules and r 3 of 109 860 the 1955 Rules and r 13 of the 1957 Rules
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
But if the servant has no right to the post as where be is appointed to a post permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi permanent service as defined in the Temporary Service Rules the termination of his employment does not deprive him of any right and cannot therefore by itself be a punishment
One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant but for such termination had the right to hold the post
If he had a right to the post as in the three cases hereinbefore mentioned the termination of his service will by itself be a punishment and he will be entitled to the protection of article 311
In other words and broadly speaking article 311 2 will apply to those cases where the Government servant had he been employed by a private employer will be entitled to maintain an action for wrongful dismissal removal or reduction in rank
To put it in another way if the Government has by contract express or implied or under the rules the right to terminate the employment at any time then such termination in the manner provided by the contract or the rules is prima facie and per se not a punishment and does not attract the provisions of article 311
It does not however follow that except in the three cases mentioned above in all other cases termination of service of a Government servant who has no right to his post eg where he was appointed to a post temporary or permanent either on probation or on an officiating basis and had not acquired a quasi
861 permanent status the termination cannot in any circumstance be a dismissal or removal from service by way of punishment
Cases may arise where the Government may find a servant unsuitable for the post on acconut of misconduct negligence inefficiency or other disqualification
If such a servant was appointed to a post permanent or temporary either on probation or on an officiating basis then the very transitory character of the employment implies that the employment was terminable at any time on reasonable notice given by the Government
Again if the servant was appointed to a post permanent or temporary on the express condition or term that the employment would be terminable on say a month s notice as in the case of Satish Chander Anand vs The Union of India 1 then the Government might at any time serve the requisite notice
In both cases the Government may proceed to take action against the servant in exercise of its powers under the terms of the contract of employment express or implied or under the rules regulating the conditions of service if any be applicable and ordinarily in such a situation the Government will take this course
But the Government may take the view that a simple termination of service is not enough and that the conduct of the servant has been such that he deserves a punishment entailing penal consequences
In such a case the Government may choose to proceed against the servant on the basis of his misconduct negligence inefficiency or the like and inflict on him the punishment of dismissal removal or reduction carrying with it the penal consequences
In such a case the servant will be entitled to the protection of article 3112
The position may therefore be summed up as follows Any and every termination of service is not a dismissal removal or reduction in rank
A termination of service brought about by the exercise of a con 
tractual right is not per se dismissal or removal as has been held by this Court in Satish Chander Anand vs The Union of India supra
Likewise the termination of service by compulsory retirement in terms of a 1  862 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 I
In either of the two abovementioned 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
It is true that the misconduct negligence inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule nevertheless if a right exists under the contract or the rules to terminate the service the motive operating on the mind of the Government is as Chagla CJ has said in Shrinivas Ganesh vs Union of India supra wholly irrelevant
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 3 1 1 is not attracted
But even if the Government has by contract or under the rules the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction 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
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 311 for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances
It puts an indelible stigma on the officer 1 1955 I SCR 26 863 affecting his future career
A reduction in rank likewise may be by way of punishment or it may be an innocuous thing  If the Government servant has a right to a particular rank then the very reduction from that rank will operate as a penalty for he will then lose the emoluments and privileges of that rank
If however he has no right to the particular rank his reduction from an officiating higher rank to his sub  stantive lower rank will not ordinarily be a punishment
But the mere fact that the servant has no title to the post or the rank and the Government has by contract express or implied or under the rules the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a Punishment
The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences
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 bad 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
The use of the expression  terminate  or  discharge  is not con elusive
In spite of the use of such innocuous expressions 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  If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art311 which give protection to Government servant 864 have not been complied with the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant
Applying the principles discussed above it is quite clear that the petitioner before us was appointed to the higher post on an officiating basis that is to say he was appointed to officiate in that post which according to Indian Railway Code r 2003 19 corresponding to FR 9 19 means that he was appointed only to perform the duties of that post
He had no right to continue in that post and under the general law the implied term of such appointment was that it was terminable at any time on reasonable notice by the Government and therefore his reduction did not operate as a forfeiture of any right and could not be described as reduction in rank by way of punishment
Nor did this reduction under Note 1 to r 1702 amount to his dismissal or removal
Further it is quite clear from the orders passed by the General Manager that it did not entail the forfeiture of his chances of future promotion or affect his seniority in his substantive post
In these circumstances there is no escape from the conclusion that the petitioner was not reduced in rank by way of punishment and therefore the provisions of article 311 2 do not come into play at all
In this view of the matter the petitioner cannot complain that the requirements of article 311 2 were not complied with for those requirements never applied to him
The result therefore is that we uphold the decision of the Division Bench although on somewhat different grounds
This appeal must therefore be dismissed with costs
With great respect I cannot agree that article 311 is not attracted in this case
I agree with my Lord that article 311 applies to all classes of Government servants mentioned in it and that it makes no difference whether they are permanent quasi permanent officiating temporary or on probation
There may be good reasons for having all these shades of difference in the civil services and 865 among those who bold civil posts in the Union and the States but I am clear that the protections afforded by article 311 and other parts of the Constitution cannot be nullified or whittled down by clever phrasing and subtle ingenuity
I am also clear that  Except as expressly provided by this Constitu tion every person etc  holds office during the pleasure of the President    These words are absolute and leave no room for inference or deduction
The  pleasure  can only be controlled by some express provision in the Constitution
One of them is in article 3102 another in article 31 1
There are also others such as articles 1244 and 2171b but it is not necessary to enumerate them because I am only concerned with the broad principle here
I also agree with my Lord that the words dismissal removal and reduction in rank used in article 311 have special meaning
I would not have said this had it not been for ambiguities that arise otherwise
We were faced with that in Satish Chandra Anand vs Union of India 1 where we had to construe the words  dismissal  and  removal  and to determine whether they were merely tautologous or bad been introduced to emphasise a difference in meaning
According to the dictionary they mean the same thing or at any rate have subtle shades of distinction that are meaningless in the context in which they are used
It was therefore necessary to look to the surrounding circumstances and determine whether they had acquired special technical significance at the date of the Constitution
For that purpose it was necessary to examine the history of the conditions of service under the Crown and look to the various statutes and rules then in force
Except for that I do not think it would have been proper to look at the rules for I cannot agree that the Constitution can be construed by reference to Acts of the Legislature and rules framed by some lesser authority and in particular to rules made and Acts passed after the Constitution
1  866 I agree with my Lord that article 311 applies when penal consequences ensue from the dismissal or removal or reduction in rank though I prefer to phrase this in wider terms and say that the Article is attracted whenever a  right  is infringed in the way in which I shall proceed to explain for a right can be infringed in that sort of way even when no penal consequences follow
I have used the word  right but must hasten to explain that I use it in a special sense
The  right  need not necessarily be justiciable nor need it necessarily amount to a contract but broadly speaking it must be the sort of right  which even when not enforceable in the courts would form a good foundation for a Petition of Right in England
It is as difficult to speak of rights  except those expressly conferred by the Constitution when one holds at  pleasure  as to speak of contracts
 But they are convenient expressions to convey a particular thought provided the limitations imposed by the context are not forgotten
The word  contract is used in article 3102 but as these  contracts  are as much subject to pleasure as any other engagement of service except as otherwise provided by the Constitution they are not contracts in the usual sense of the term nor are the conditions of service that apply to Government servants who do not serve under a special contract
A contract that can be determined at will despite an express condition to the contrary and that is what article 3102 contemplates is not a contract as usually understood nor are conditions of service that can be unilaterally varied without the consent of the other it contracting party  and even behind his back
But they are convenient terms to convey a thought and that is the sense in which  contract  is used in article 3102 and the sense in which it has been used in some Privy Council rulings
Now these  conditions of service  and of course special  contracts  as well confer  rights  and though the conditions can be varied unilaterally because of the  pleasure  they cannot be ignored so 867 long as they are in force  and if a dismissal or removal or reduction in rank infringes one of these rights  then in my judgment article 311 is attracted
I said in Satish Chandra Anand s case 1 that the President and Government are as free to enter into special contracts as any other person provided they are consistent with the Constitution
That also applies to conditions of service where there are no special  contracts 
Anything else would be anomalous especially as anyone who serves under the Union or under a State serves at  pleasure 
It is therefore possible for the President to make  contracts  that are terminable in a particular way or at a particular time or on the happening of a given event provided they do not offend the Constitution  and when they are so determined they can broadly speaking be called contractual terminations
Two such cases have already been before this court
In Satish Chandra Anand s case supra it was a special  contract  terminable with a month s notice on either side
In Shyam Lal vs State of Uttar Pradesh 2 it was a condition of service that permitted compulsory retirement at a particular age
Any other variation that does not offend the Constitution would be equally permissible
These conditions confer a  right on one side and correspondingly reduce the ambit of the  rights  conferred by the  contract  on the other
Therefore when Government exercises one of their  rights  there is no infringement of the other party s  rights  because to that extent he has none
It follows that when in a given case Government has an option to adopt one of two courses as for example to  dismiss  or  reduce  for misconduct and at the same time to terminate or alter the service under a term of the  contract  or because of a condition of the service then if it chooses to act under the right conferred by the  contract  article 311 is not attracted even though misconduct is also present and even though that is the real reason for the action taken
But if Government chooses to adopt such a course it must be careful to see that no evil consequences 1  2  110 868 will ensue over and beyond those that would ordinarily follow from a normal termination or alteration when there is no misconduct or blame on the part of the person affected
But I repeat that any such condition must be consistent with the Constitution and that no clever artifice or juggling with words can destroy or whittle down the guarantees of article 311 or any other Article for that matter
To my mind the test must always be whether evil consequences over and above those that would ensue from a  contractual termination  are likely to follow
Were it otherwise the blameless man against whom no fault can be found would be at a disadvantage
It would be anomalous to bold that a man who has been guilty of misconduct should have greater protection than a blameless individual
But any man who is visited with evil consequences that would not ensue in the case of another similarly placed but free from blame can in my opinion claim the protection of Art311
Now what happened in this case The appellant was appointed to an All India service of the Union in August 1924
He has not been removed or dismissed from service so he is still a member of an All India service
On July 2 1951 he was appointed Assistant Superintendent of Railway Telegraphs in class II service
On August 19 1953 he was relieved of this appointment and reverted to his substantive post in a class III appointment
There can be no doubt that this was a reduction in rank
The only question is whether it was so within the meaning of article 311 for as I said earlier these words have special meaning and do not apply in every case where a person is removed from a higher to a lower post
The argument on behalf of the Union of India is that the higher post to which the appellant was appointed was temporary and that the appellant was only officiating in it and rules were cited to show that Government had the right under those rules to shift the appellant from a higher to a lower post
I need not consider this argument because we are all 869 agreed that article 311 applies even when the appointment is temporary or officiating and on the view I take it does not matter whether Government had what I might call a  contractual right  to reduce because even if it had it exercised it in a way that evoked evil consequences over and above those that would have ensued in a similar case where there was neither misconduct nor blame
Our attention was directed to remarks in the appellant s confidential reports and to various administrative notings on his files
All these are in my opinion irrelevant
We are only concerned with the operative order made by the proper authority competent to make it and with the consequences that ensue from that order
In this case the order of reversion dated August 19 1953 is non committal
It merely says that Shri Bishambar Nath Chopra is appointed to officiate in the appellant s place and that on relief the appellant will revert to a lower rank
That in itself might be harmless but the order does not stand alone and though the various administrative notings are irrelevant the General Manager s remarks on them which form the real foundation of the order cannot be ignored because the sting lies there and the evil con sequences of which I speak flow from them
They are really part and parcel of the order and the two must be read together
I say this because quite obviously the constitutional guarantees of article 311 cannot be evaded by passing a non committal order that is innocuous and at the same time making another order in secret that would have attracted article 311 had it been made openly
I am not suggesting that that was done here or that the object was to evade article 311 by a secret manoeuvre
All I am pointing out is that the consequences of article 311 cannot be evaded by cleverly splitting up an order into two parts
Now what were those remarks They were endorsed on the appellant s file on June 11 1953
The General Manager said  I am disappointed to read these reports
He 870 should revert as a subordinate till he makes good the short comings noticed in this chance of
his as an officer
 What does that mean  In plain English it means that he is not to be promoted to a like post until some competent officer chooses to think he has made good his previous short comings
That is an evil consequence over and above that which would ensue in the case of what I may call again a  contractual termination  of the engagement in
the higher post
It was virtually admitted in the arguments before us that a man who is reduced in rank for misconduct for a particular period say one year or two years is being  punished  and therefore article 311 will apply
What difference is there if the reduction is for an unspecified period instead of for one that is certain  In both cases the possibility of promotion is stayed and whether that is a  punishment or a penalty it is in my judgment an evil consequence over and above that which would ensue in a case where the man reduced is faultless
In view of the almost frivolous resort that is sometimes made to article 311 1 want to guard against too wide an interpretation of what I have said
I do not mean to imply that the reasons that lead to an order of reduction are relevant when there is a contractual right to act in a particular way nor do I mean to imply that a mere recording of disappointment or dissatisfaction would attract article 311 even if it is followed by a contractual termination of the engagement
All that is not of the essence
The real test is whether additional evil consequences are implicit in the order
It is here that I venture to dissent with the very greatest respect from my Lord s construction of article 311
If I read his judgment aright I gather that his view and that of my learned brothers is that article 311 is confined to the penalties prescribed by the various rules and that one must look to all the relevant rules to determine whether the order is intended to operate as a penalty or not
With deep respect I do not think that the gist of the matter is either the form 871 of the action or the procedure followed nor do I think it is relevant to determine what operated in the mind of a particular officer
The real hurt does not lie in any of those things but in the consequences that follow and in my judgment the protections of article 311 are not against harsh words but against hard blows
It is the effect of the order alone that matters  and in my judgment article 311 applies whenever any substantial evil follows over and above a purely contractual one
I do not think the article can be evaded by saying in a set of rules that a particular consequence is not a punishment or that a particular kind of action is not intended to operate as a penalty
In my judg ment it does not matter whether the evil consequences are one of the penalties prescribed by the rules or not
The real test is do they in fact ensue as a consequence of the order made  I would allow the appeal with costs
BY THE COURT
In accordance with the opinion of the majority the appeal is dismissed with costs
Appeal dismissed


Summary:
The appellant Parshotam Lal Dhingra was appointed to the Indian Railway Service as a Signaller Telegraphist in 1924 and was promoted to the post of Chief Controller in 1950 both the posts being in class III Service
On July 2 1951 he was appointed to officiate in class II Service as Asst
Superintendent Railway Telegraphs
On certain adverse remarks made against him in his Confidential Report for the year ending March 31 1953 the General Manager on June 21 1953 remarked as follows I am disappointed to read these reports
He should revert as a subordinate till he makes good the short coming noticed in this chance of his as an officer
Portions underlined to be communicated to him
 Thereupon the appellant made a representation but on I  829 August 19 1953 the General Manager issued a notice as follows Shri Bishambar Nath Chopra Instructor Railway Training School Saharnpur is transferred to Headquarters office and appointed to officiate in Class II service as Assistant Signal and Tele Communication Engineer Telegraphs vice Shri Parshotam Lal Dhingra who on relief reverts to Class III T appointment
 Against this order the appellant moved the High Court under article 226 of the Constitution
The single judge who heard the matter held that the order was invalid as the provisions of article 3112 of the Constitution had not admittedly been complied with
The Division Bench on appeal however set aside the order of the Single judge and dismissed the appellant s writ application
The question for decision was whether the order of the General Manager amounted to a reduction in rank within the meaning of article 3112 of the Constitution and the appellant was entitled to a reasonable opportunity of showing cause against the order
Held per Das C J Venkatarama Aiyar section K Das A K Sarkar jj Vivian Bose J dissenting that the order of reversion made against the petitioner did not amount to a reduction in rank within the meaning of article 3112 Of the Constitution and he was not entitled to the protection of that Article
Like article 31O of the Constitution which makes no distinction between persons holding permanent or temporary posts in the matter of their tenure being dependent on the pleasure of the President or the Governor article 311 which is in the nature of a proviso to article 310 also makes no distinction between permanent and temporary posts and extends its protection equally to all Government servants holding permanent or temporary posts or officiating in any of them
Laxminarayan Chiranjilal Bhargava vs The Union of India ILR  Engineer in Chief Army Head Quarters vs C A Gupta Ram AIR 1957 Punj
42  State of Punjab vs section Sukhbans Singh AIR 1957 Punj
191 and Chironjilal vs Union of India AIR 1957 Raj 81 overruled
But the protection of article 31I can be available only where dismissal removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise
These were the major punishments evolved by the Service Rules and Rules of the Railway Code and well understood as such against which protection was sought to be provided by the Rules
These protections were in due course incorporated in section 240 of the Government of India Act 1935 and reproduced in article 311 of the Constitution thus qualifying the principle embodied in article 3101
Venkataraman vs The Union of India   referred to
jayanti Prasad vs The State of Uttar Pradesh AIR 1951 All
793  Shrinvas Ganesh vs Union of India AIR 1956 Bom
455 Jatindra Nath Biszwas vs R Gupta AIR 1954 830 Cal 383  Rabindra Nath Das vs The General Manager Eastern Railway  jatindra Nath Mukherjee vs The Government of the Union of India  Ahmad Sheikh vs Ghulam Hassan AIR 1957 J  K 11 Ganesh Balkrishna Deshmukh vs The State of Madhya Bharat AIR 1956 MB 172 D P Ragunath vs The State of Coorg AIR 1957 Mys 8 M V Vichoray vs The State of Madhya Pradesh AIR 1952 Nag
288 Kanta Charan Srivastava vs Post Master General AIR 1955 Pat
381 and Sebastian vs State AIR 1955 Tr
CO 12 approved
One test for determining whether the termination of service was by way of punishment or otherwise is to ascertain whether under the Service Rules but for such termination the servant has the right to hold the post
In the three cases of 1 substantive appointment to a permanent post 2 temporary appointment for a fixed term and 3 a temporary appointment which has ripened into a quasi permanent status under the Temporary Service Rules where such a right exists the servant will be entitled to the protection of article 311
Conversely where no such right can exist as in the case of a probationary or officiating appointment to a permanent or temporary post or where the service has not ripened into a quasi permanent status and under the general law the service can be terminated on reasonable notice the termination of service cannot amount to a punishment and attract the Article
Broadly speaking article 3112 can apply to those cases where the Government servant if in private employment could maintain an action for wrongful dismissal removal or reduction in rank
So where the Government has by contract express or implied or under the Rules the right to terminate the service at any time such termination in the manner provided in the contract or under the Rules cannot attract the provisions of article 311
That does not however mean that the termination of service of a servant who has no right to the post can never be a dismissal or removal by way of punishment
Although in such a termination the actual motive of the Government must be wholly irrelevant where it expressly chooses to penalise the servant for misconduct negligence inefficiency or the like by inflicting on him the punishment of dismissal removal or reduction the requirements of article 311 must be complied with
Satish Chander Anand vs The Union of India 1953 SCR 655 Shyam Lal vs The State of Uttar Pradesh 1955 1 SCR 26 and Shrinivas Ganesh vs Union of India LR 58 Bom
673 referred to
A reduction in rank must similarly be a punishment if it carries penal consequences with it and the two tests to be applied are 1 whether the servant has a right to the post or the rank or 2 whether evil consequences such as forfeiture of pay or allowances loss of seniority in his substantive rank stoppage or postponement of future chances of promotion follow as a result of the order
Where either of these tests applies the reduction in 831 rank mast be one within the meaning of article 311 2 of the Constitution and attract its protection
In the instant case the appellant was holding an officiating post and had no right under the rules of the Railway Code to continue in it
Under the general law such appointment was terminable at any time on reasonable notice and the reduction could not operate  as a forfeiture of any right
The order of the General Manager visited him with no evil consequences
Consequently he was not reduced in rank by way of punishment
Per Bose J While there can be no doubt that article 311 applies to all classes of Government Servants whether permanent quasipermanent officiating temporary or on probation and that the words dismissal removal and reduction in rank used therein have a special meaning that Article properly construed cannot be confined to the penalties prescribed by the Service Rules
The gist of it is neither the form of the action nor the procedure nor what operated in the mind of the competent authority
The real test is whether evil consequences over and above those that would ensue from a contractual termination are likely to ensue
If they are article 311 is attracted even though such evil consequences are not prescribed as penalties under the Rules
Though the conditions of service prescribed by the Rules can be varied unilaterally in some cases because of the pleasure of the President they cannot be ignored as long as they stand and if they are infringed while in force article 311 will be attracted in an appropriate case
Satish Chandya Anand vs Union of India  and Shyam Lal vs State of Uttar Pradesh   referred to
Nor can the protections afforded by article 311 be nullified by a splitting up of the order
In the present case the General Manager s remarks in the confidential file which formed a part of the operative order and was its real foundation clearly indicated the mischief that the appellant was not to be promoted to a like post until in the opinion of some competent Officer he had made good his previous short comings
That was an evil consequence over and above that which would follow from a mere contractual termination of his engagement in the higher post and so was sufficient to attract the protection of article 311