il Appeal No 212 of 1975
Appeal by Special Leave from the Judgment and Order dated 26 6 1974 of the Kerala High Court in AS No 51072
LN Sinha Sol
of India Shaymla Pappu and Girish Chandra for the appellant
AS Nambiar for the respondent
The Judgment of the Court was delivered by BEG J
The Union of India and the Commander Officer incharge Naval Base Cochin are the appellants before us by grant of special leave against a judgment and decree of a Division Bench of the High Court of Kerala
The Division Bench had affirmed the decision of a learned subordinate Judge awarding Rs 25000 as damages together with inter est  6 per annum to the plaintiff respondent for the illegal termination of the respondent s services
The plaintiff respondent was serving as a Welder Grade II in the Civilian Defence Forces at the Naval Base Cochin at the time of this allegedly illegal termination of service by an order of 25th October 1968 of the Govt
of India Ministry of Defence
Special leave was granted on condition that the appel lants Will bear the costs of the respondent in any event
The point of law sought to be canvassed before us is Does the doctrine that a Central Govt
servant holds his post at the pleasure of the President contained in Article 310 of the Constitution authorise the passing of an order of termination of services without assigning any reason what soever of the holder of a post connected with defence  There is no finding anywhere that the services of the plaintiff respondent were terminated as a measure of pun ishment for any wrong done by him or for incompetence although a perusal of the pleadings would show that the appellants denied the assertions of the plaintiff respondent that he was efficient and entitled to promotions as he had qualified for them by passing certain tests
The Subordinate Judge had awarded only Rs 25000 
out of a claim of Rs 75000 made on the ground that but for illegal termination of the service of the plaintiff respond ent the plaintiff would have continued in service upto the age of 60 years and duty promoted instead of being thrown out of service at the age of 41
The plaintiff respondent alleged that the termination of his service without giving any reason whatsoever was contrary to rules made under Article 309
A glance at paragraph 4 of the plaint shows that the violation of rules 89 relating to conduct of disciplinary proceedings was alleged by the petitioner
In paragraph 5 of the plaint however he alleged As per the terms of appointment and the rules governing the service of the petitioner he is entitled normally to continue in service till the age of 60
If his service had not been terminated as per the impugned order the petitioner would have been entitled to continue for a further period of 19 years and 8 months
He proceeded to assert Due to the illegal termination the peti tioner had lost a valuable right vested in him by virtue of his appointment and guaranteed by the Constitution of India and the rules framed thereun der namely a right to continue in service for the full period of 19 years and 8 months and thus to gain a livelihood for himself and his family
A perusal of the judgment of the Division Bench shows that the only point really considered by it was whether the pleasure of the President mentioned in Article 310 of the Constitution can over ride rules made under Article 309 of the Constitution
The High Court had explained away a passage cited from State of UP  Ors vs Babu Ram Upadhya1 by observing that it did not support the argument that rules made under Article 309 of the Constitution did not control the pleasure of the President under Article310 which was to be subject to matters otherwise expressly provided in the Constitution
The passage so explained away runs follows 
If there is a specific provlsion in some part of the Constitution giving to a Government servant a tenure different from that provided for in article 310 that Government servant is excluded from the operation of article 310
The said words refer inter alia to articles 124 148 218 and 324 which provide that the Judges of the Supreme
Court the Auditor General the Judges of the High Courts and the Chief Election Commissioner shall not be re moved from their offices except in the manner laid down in those Articles
If the provisions of the Constitution specifically prescribing different tenures were excluded from article 310 the purpose of that clause would be exhausted and thereafter the Article would be free from any other restrictive operation
In that event article 309 and 310 should be read together excluding the opening words in the latter Article namely Except as expressly provided by this Constitution
Learned Counsel seeks to confine the operation of the opening words in article 309 to the provisions of the Constitution which empower other authorities to make rules relating to the conditions of service of certain classes of public servants namely articles 1462 1485 and 2292
That maybe so but there is no reason why article 310
should 1 AIR 1961 SC 751 8 1003 SCI76 90 be excluded therefrom
It follows that while article 310 provided for a tenure at pleasure of the President or the Governor article 309 enables the legislature or the executive as the case may be to make any law or rule in regard inter alia to conditions of service without impinging upon the overriding power recognised under article 310
The Kerala High Court relied on Union of India vs J N Sinha  Anr1 to hold that doctrine of office held at the pleasure of the President was subject to rules made under Article 309 of the Constitution and pointed out that it was held inter alia by a Division Bench of this Court at p 42 A Government servant serving under the Union of India holds his office at the pleasure of the President as provided in Article 310 of the Consti tution
But this pleasure doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Art311 
The High Court also relied on State of Madhya Pradesh  Ors
vs Shardul Singh2 where the same Division Bench of this Court had held inter alia at p 111  Article 3101 of the Constitution declares that every person who is a member of Civil service of a State or holds any civil post in a State holds office during the pleasure of the Governor of a State
But the pleasure doctrine embodied therein is subject to the other provisions in the Constitu tion
Two other Articles in the Constitution which cut down the width of the power given under Article 310 1 are Articles 309 and 311
Article 309 provides that subject to the provisions of the Constitution acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public
services and posts in connection with the affairs of the Union or of any State
Proviso to that Article says Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the af fairs of the State to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article and any rules so made shall have effect subject to the provisions of any such Act  The High Court then referred to N Ramanatha Pillai vs State of Kerala  Anr
3 a decision of 5 learned Judges of this Court in which Ray CJ speaking for the Constitution Bench of this Court 1 AIR 1971 SC 40
2 at 111
3  at 2645
91 while considering the power of the Govt
to create continue and abolish a post said at p 2645 Article 309 provides that subject to the
provisions of the Constitution Acts of the appropriate Legislature may regulate the recruit ment and conditions of service of persons appoint ed to public services and posts in connection with the affairs of the Union or of any State
There fore Acts in respect of terms and conditions of service of persons are contemplated
Such Acts of Legislature must however be subject to the provi sions of the Constitution
This attracts Article 310 1
The proviso to article 309 makes it compe tent to the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union and for the Governor of a State or such person as he may direct in the case of services and posts in con nection with the affairs of the State to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts under the Union and the State
These Rules and the exercise of power conferred on the delegate must be subject to Article 310
The result is
that Article 309 cannot impair or affect the pleasure of the  President or the Gover nor therein specified
Article 309 is there fore to be
read subject to Article 310
The High Court after citing the passage set out above said We do not understand the above passage as suggesting that Article 310 cannot in any manner be controlled by Rules framed under Article 309
After a consideration of decisions of this Court in this manner it expressed its views as follows These cases we think sufficiently indicate that while it may be open to the PreSident or to the Governor to dismiss a civil servant at pleas ure if Rules have been framed under Article 309 of the Constitution to regulate the mode and manner of termination of service these have to be com plied with
This we think is reasonable and understandable enough on first principles
If the untrammelled pleasure of the President has been subjected to Rules framed by the President himself in regard to the manner of termination of service the pleasure must be subject to such Rules
The Division Benh of the High Court then re corded its conclusion We are therefore of the opinion that in the instant case the Civil Services Classification Control and Appeal Rules having been framed under Article 309 of the Constitution the same had to be followed before the respondent s service was terminated
The same not having been admittedly complied with the finding of the  Court below that the termination is illegal was correct and requires no interference
No arguments were addressed on the quantum of damages awarded
92 We do not think that the difficulty before the High Court could be resolved by it by following what it consid ered to be the view of a Division Bench of this Court in two cases and by merely quoting the views expressed by larger benches of this Court and then observing that these were insufficient for deciding the point before the High Court
It is true that in each of the cases cited before the High Court observations of this Court occur in a con text different from that of the case before us
But we do not think that the High Court acted correctly in skirting the views expressed by larger benches of this Court in the manner in which it had done this
The proper course for a High Court in such a case is to try to find out and follow the opinions expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court That is the practice followed by this Court itself
The practice has now crystallized into a rule of law de clared by this Court
If however the High Court was of opinion that the views expressed by larger benches of this Court were not applicable to the facts of the instant case it should have said so giving reasons supporting its point of view
we have perused the Central Civil Service Classifica tion Control and Appeal Rules of 1965 hereinafter re ferred to as 1955 Rules  which deal principally with procedure for disciplinary proceedings and penalties and appeals and reviews against orders passed under the rules
There is no rule there dealing with the conditions under which a service such as that of the plaintiff respondent may be terminated
We fail to see any rule made under Article 309 of the Constitution which was violated by the impugned order of termination of service of the plaintiff respondent
We do not consider ourselves called upon to
decide a ques tion which has really not arisen in the case
before us
The 1965 Rules are applicable when disciplinary proceed ings are taken
They do not make disciplinary proceedings under the rules incumbent or obligatory whenever the services of a person covered  by these rules are terminated
The obligation to follow the procedure for punishment laid down in the rules flows from the provisions of Article 311 of the Constitution
And as the opening words of Arti cle 310 show the doctrine of office held at the pleasure of the  President does not apply to cases covered by Article 311
Rule 3 of the above mentioned rules begins
as follows 3
Application l  These rules shall apply to every Government servant including every civilian Government servant in the Defence Serv ices but shall not apply to a any railway servant as defined in rule 102 of volume I of the Indian Railway Establishment Code b any member of the All India Services c any person in casual employment c any person in casual employment d any person subject to discharge from service on less than one month s notice
e any person for whom special provision is made in respect of matters covered by these rules by or under 93 any law for the time being in force or by or under any agreement entered into by or with the previous approval of the President before or after the commencement of these rules in regard to matters covered by such special provisions 2 Notwithstanding anything contained in sub rule 1 the President may by order exclude any class of Government servants from the operation of all or any of these rules
3 Notwithstanding anything contained in sub rule 1 or the Indian Railway Establishment Code these rules shall apply to every Government servant temporarily transferred to a Service or post coming within exception a or e in sub rule 1  to whom but for such transfer these rules would apply
4 If any doubt arises a whether these rules or any of them apply to any person or b whether any person to whom these rules apply belongs to a particular service the matter shall be referred to the President who shall decide the same
Even if the parties were governed by these rules because the plaintiff held a civil post in one of the Defence Departments yet there must be some violation of one of these rules which were no doubt framed under Article 309 read with clause 5 of Article 148 of the Constitution before any question of a conflict between a rule framed under Article 309 and the provisions of Article 310 could possibly arise
We fail to see such a conflict here
These rules merely lay down procedure for matters cov ered by Article 31 l of the Constitution
There is no doubt that proceedings under Article 311 of the Constitution constitute an exception to the doctrine of pleasure con tained in Article 310 of the Constitution
But in the case before us no question of any disciplinary proceedings has been discussed because it did not arise at all
There is no finding that any punishment was imposed upon the plaintiff respondent
It may be that mere termination of service when the plaintiffrespondent was holding a perma nent post and entitled to continue in service until 60 years of age may constitute punishment per seven when the termination of service is not meant as a punishment
But in that event there had to be a finding on the rule or order under which the plaintiff was entitled to continue in serv ice
until he reached the age of 60 years
The High Court had cited no rule made under
Article 309 to show that there was any such provision
In PL Dhingra vs Union of India1 Das CJ speaking for the majority of a Bench of five judges of this Court said at p 47 It has already been said that where a person is appointed substantively to a permanent post in Government service
1  at 47
94 he normally acquires a right to hold the post until under the rules he attains the age of superannua tion 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 311 2
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 employ ment
The propositions laid down in Dhingra s case supra by this Court mean that unless a legally justifiable ground is made out for the termination of the service of a Govern ment servant
in permanent service in the sense that he is entitled to remain in service until he  reaches the age of retirement he could be deemed in a given case to be pun ished by an apparently innocent order of termination of service
If however the respondent belonged to a class of government servants the tenure or conditions of whose serv ice was subject to the over riding and unqualified sway of the power to terminate his services at will by reason of Article 3101 of the Constitution we doubt whether he could claim to be a permanent servant who could continue as of right in service until he reaches the age of super annuation
At any rate he could not be a permanent Government servant of the same class as one protected by Article 311
Even if we were to hold that the plaintiff respondent was constructively punished the provisions of Article 311 unfortunately do not apply to such a Government servant as the respondent was
Whereas the power contained in Article 310 governs all Government servants including those in the services connected with defence the benefits of Article 311 which impose limitations on the exercise of this power in cases of punishment do not extend to those who hold posts connected with defence
Constitution Bench of this Court has held after a review of relevant authorities this to be the position of the
holder of a post such as that of the plaintiff respondent in L R Khurana vs Union of India
1 As the plaintiff respondent was not entitled to the protection of Article 311 the only effect of the 1965 Rules upon his case is that they could be applied if disci plinary proceedings had been taken against him as the holder of a post connected with defence
In other eases of such servants
where no such disciplinary proceedings are instituted and none were started against the plaintiff respondent the 1965 Rules governing procedure for
punishments to be imposed will not apply at all
There is no legal obligation to apply those rules here
The legal obligation to apply them to every case of punish ment flowing from Article 311 is confined to holders of posts covered by Article 311
On this question we are bound by the decision of a bench of five learned Judges of this Court in Khurana s case supra
1  95 We were asked to import the obligation to apply the procedure prescribed by Article 311 to a case such as the one before us by invoking the aids of Articles 14 and 16
Apart from the fact that these Articles could not be in voked against a discrimination made by Constitutional provi sions no such case was set up earlier
We cannot permit it at this stage
The only ground on which the respondent had assailed the order of termination of his service was non compliance of 1965 Rules which meant  that he claimed the protection of Article 311 of the Constitution
But for the reasons given above this protection is not available to him
Therefore this appeal must succeed
Consequently we allow this appeal set aside the judgment and decree of the High Court and dismiss the plaintiff s suit
But in the circumstances of the case the appellant will in keeping with the undertaking given at the time of grant of special leave bear the costs of both sides throughout
Appeal allowed


Summary:
Respondent was a welder in the Civilian Defence Forces
On his services being terminated without stating any rea son he filed a suit for damages for illegal termination on the basis that he would have continued in service upto the age of 60 instead of being thrown out at the age of 41
The trial Court gave a decree for damages which was affirmed by the High Court on the ground
that the doctrine of post held during the pleasure of the President contained in article 310 does not authorise the termination without complying with the procedure prescribed by the Central Civil Service s Classification Control and Appeal Rules 1965 framed under article 309
Allowing the appeal to this Court HELD 1 The Rules deal principally with the procedure for disciplinary proceedings and penalties and appeals and reviews against orders passed under the rules
They are applicable if disciplinary proceedings had been taken against the respondent but they do not make disciplinary proceedings incumbent or obligatory whenever the services of a person are terminated
In the present case there were no disciplinary proceedings against the respondent
92 D E 2 The mere termination of the service
by an apparent ly innocent order of a Government servant in permanent service in the sense that he is entitled to remain in service until he reaches the age of retirement could be deemed in a given case to be a punishment
But in that event there had to be a finding on the rule or order under which the respondent was entitled to continue in service until he reached the age of 60
There is no reference to any such rule and there was no finding that any punishment was imposed upon him or that his services were terminated as a measure of punishment for any wrong done by him or for incompetence
94 C 93 G PL Dhingra vs Union of India   47 referred to
3 Even assuming that the respondent was constructive ly punished there is no legal obligation to apply the Rules
The legal obligation to apply them to every case of punishment flows from the provisions of article 311 and is confined to holders of posts covered by article 311
But the provisions of article 311 do not apply to the respondent since they do not apply to the holder of a post connected with defence
94 E LR Khurana vs Union of India  followed
4 Terefore when no disciplinary proceedings are instituted the Rules will not at all apply and there is no other rule dealing with the conditions under which the service such as that of the respondent
may be terminated
Since there was no violation of any rule no question of a conflict between a rule framed under article 309 and the doc trine of pleasure contained in article 310 which applies to all Government servants including those in the services connected with defence arises in the present case
94 G 88 5 The High Court in dealing with the question consid ered the view of a Divisional Bench of this Court in two cases merely quoted the views expressed by larger Benches of this Court and then observed that these were insuffi cient for deciding the point before it
The High Court did not act correctly in thus skirting the views expressed by larger Benches of this Court
The proper course for the High Court was to try to find out and follow the opinions expressed by the larger Benches in preference to those expressed by smaller Benches
This practice is followed even by this Court and has crystallized into a rule of law
If however the High Court was of opinion that the views expressed by larger Benches of this Court were not applica ble to the facts of the present case it should have said so giving reasons in support
92 A C