IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.585 of 2011 Sri Sunil Prakash Tiwary son of Sri Jagdish Narayan Tiwary, resident of village Pakari Ashok, P.S.- Pipra, District- East Champaran ......Appellant Versus 1. The State Of Bihar through Chief Secretary, Government of Bihar, Patna 2. Secretary, Transport Department, Government of Bihar, Patna 3. Transport Commissioner, Government of Bihar, Patna 4. The Transport Minister-cum- Appellate Authority, Bihar, Patna 5. Sri Ajit Kumar, the then Transport Minister, 3, Daroga Roy Path, Patna 800001 ......Respondents ----------- For the appellant: Mr. Abhay Kumar Singh, Sr. Advocate Mr. Manu Shankar Mishra, Advocate Mr. K. K. Mishra, Advocate For the respondents: Mr. Sidharth Prasad, AC to AAG IX -------- 4 01-07-2011 Heard the parties. 2. This appeal is directed against the judgement and order dated 28-2-2011 whereby a learned Single Judge of this court dismissed the writ petition preferred by the appellant and declined to interfere with the order dated 7-7-2006 passed under Article 311 (2) (b) of the Constitution of India by the Commissioner and Secretary, Department of Transport. By that order the writ petitioner was dismissed from service as Motor Vehicle Inspector after dispensing with departmental enquiry. The writ petitioner had preferred an appeal against the said order before the Transport Minister under Rule 24 (1) (b) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 which 2 was allowed by the Minister on 31-12-2007 directing reinstatement with back wages and continuity in service. Prayer in the writ petition was for a mandamus to enforce the appellate order. The writ court considered the conduct of the writ petitioner which had led to his dismissal and on that basis the writ petition was dismissed by placing reliance upon various judgements to the effect that extra ordinary jurisdiction under Article 226 of Constitution of India is discretionary and in appropriate cases the High Court inspite of noticing some lacunae on the part of authorities may decide not to interfere in the matter. 3. On behalf of the appellant, it has been submitted that had there been infraction of some procedural provisions, denial to writ jurisdiction may not be assailable but in the present case, according to learned counsel the order of punishment of dismissal was imposed by the Commissioner and Secretary, department of Transport in violation of provisions of Article 311 (1) of the Constitution of India because the writ petitioner was initially appointed in the year 1991, as per then 3 existing practice, by the State Government. According to learned counsel, the fact that such power of appointment to the post of Motor Vehicle Inspector has been subsequently vested in the Commissioner, department of Transport under Rules of 2003 enacted in exercise of power under Article 309 of Constitution of India cannot be sufficient answer to the requirement of Article 311(1) which requires that no person who is a member of civil service of the Union or an All India Service or a civil service of State or holds a civil post under the Union or State shall be dismissed or removed by an authority subordinate to that by which he was appointed. 4. Learned counsel for the State fairly accepted that appointment of the writ petitioner in the year 1991 was by the State Government but submitted that on account of Rules of 2003 the post of the writ petitioner forms a part of the cadre of Motor Vehicle Inspectors of which the Transport Commissioner is the appointing authority and, hence, it is possible to interpret that since 2003 the power of the State Government as appointing authority has been vested in the Transport 4 Commissioner. 5. In reply, learned counsel for the appellant has placed reliance upon a judgement of the Apex Court in the case of Krishna Kumar Vs. Divisional Assistant Electrical Engineer, (1979) 4 SCC 289. 6. In that case the appellant had been removed from service by an authority subordinate in rank to the appointing authority but subsequently there was delegation of power to the subordinate authority to make appointment to the post in question. In paragraph 5 of that judgement the Supreme Court has given a clear answer that the issue as to whether or not the authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It was further clarified that the guarantee under Article 311(1) becomes available to holder of the civil post at the time of his appointment and, hence, subsequent authorization in favour of another authority to make the appointment to the post in question cannot confer upon such subordinate authority the power to remove the employee who was actually appointed by a 5 superior authority. 7. Learned counsel for the appellant has also cited a judgement of the Supreme Court in the case of Moti Ram Deka Vs the General Manager North East Frontier Railway, AIR 1964 SC 600 to submit that the protection granted by Article 311 (1) can not be taken away even by retrospective statutory provision. This judgement need not be gone into because Rules of 2003 have been effected prospectively and there is no attempt to confer power of appointment upon Commissioner, Transport from a retrospective date so as to create any cloud over the protection granted under Article 311 (1) of Constitution. 8. In the facts of the case, when a constitutional protection is granted to the writ petitioner, i.e., the appellant, has been disregarded and order of dismissal is by an authority which could not have jurisdiction to pass such an order, it would not be proper to refuse exercise of writ jurisdiction. Even in exercise of writ jurisdiction this court has the solemn responsibility of protecting the Constitution and its provisions. 6 9. In that view of the matter, the appeal is allowed to the extent that the order of dismissal passed by the Transport Commissioner on 7-7-2006 shall stand quashed but at the same time the appellate order which directed for reinstatement shall also remain stayed for a period of three months from the date of production/ communication of a copy of this order before the disciplinary authority. Within this period the competent authority would be at liberty to examine the facts of the case and take appropriate decision in respect of service of the writ petitioner in accordance with law. If no decision is taken within three months as aforesaid, in that event the writ petitioner would be entitled for reinstatement with back wages. In the eventuality of fresh decision by the competent authority as per liberty granted, the rights of the writ petitioner would be governed by such a decision. BKS/- (Shiva Kirti Singh, J.) (V. Nath, J.)