Judgment Case ID: 4032

Judgment:
Civil Appeal No. 755 of 1978. Appeal by Special Leave from the Order dated 21 10 1976 of the Bombay High Court (Nagpur Bench) in S.C.A. No. 4260/76. R.K. Garg	 Edward Faleire	 V.J. Francis and D.K. Garg for the Appellant. R.P. Bhat and Girish Chandra for the Respondents. The Judgment of the Court was delivered by CHANDRACHUD	 C.J. The appellant	 Krishna Kumar	 was appointed on May 30	 1966 as an Apprentice Mechanic (Electrical) after selection by the Railway Service Commission and on the completion of his training period	 he was appointed as a Train Examiner (Electrical). On July 11	 1974 he was appointed as a Train Lighting Inspector	 Nagpur under an order passed by the Chief Electrical Engineer. That the order of appointment was made by the C.E.E. is undisputed and indeed there can be no controversy over it. The list of officer declared to be heads of departments shows that Chief Electrical Engineers are heads of their departments. By an order dated August 31	 1976	 the appellant was removed from service by respondent 1	 the Divisional Assistant Engineer	 Central Railway	 Nagpur. The appellant thereupon filed a Writ Petition (No. 4260 of 1976) in the Bombay High Court to challenge the order of removal. A Division Bench of the Nagpur Bench of the High Court dismissed the Writ Petition summarily on October 21	 1976. Being aggrieved by that order the appellant has filed this appeal by special leave. The Special Leave Petition came up before this Court on February 22	 1978 when a Bench consisting of Justice V.R. Krishna Iyer and Justice Jaswant Singh adjourned the petition for four weeks in order to enable the respondents to file an affidavit stating as to (i) who appointed the petitioner	 with special reference to the designation of the Officer who made the order of appointment and (ii) who removed the petitioner from service	 with special reference to the designation of that Officer. Pursuant to that direction	 two affidavits were filed by Shri S.P. Sarathy	 Divisional Assistant Electrical Engineer	 Central Railway	 Nagpur. The petitioner filed his rejoinder affidavit on February 20	 1978. On a consideration of these affidavits the Court on April 3	 1978 granted special leave to the appellant to file this appeal. 52 Article 311 (1) of the Constitution provides that no person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. The simple question for determination is whether	 as alleged by the appellant	 he was removed from service by an authority subordinate to that which had appointed him. The relevant facts are but these and these only: The appellant was appointed as a Train Lighting Inspector under an order issued by the Chief Electrical Engineer and was removed from service under an order passed by the Divisional Assistant Electrical Engineer	 Central Railway	 Nagpur. The narrow question	 therefore	 for consideration is whether the Divisional Assistant Electrical Engineer is subordinate in rank to the Chief Electrical Engineer. None of the affidavits filed by Shri Sarathy	 who passed the order of removal says that the post of Divisional Assistant Electrical Engineer is equivalent to that of the Chief Electrical Engineer in the official hierarchy. That the former is not higher in rank than the latter is self evident. In the circumstances	 it seems clear that the appellant was removed from service by an authority which is subordinate in rank to that by which he was appointed. In defence of the legality of the order of removal	 counsel for the respondents relies on paragraph 2 of respondent 1 's affidavit	 dated January 7	 1978	 wherein he has stated that the power to make appointments to the post of the Train Lighting Inspector was delegated to certain other officers including the Divisional Assistant Electrical Engineer. It is urged that since the Div. Asstt. Elect. Engineer has been given the power to make appointments to the post of the Train Lighting Inspector	 he would have the power to remove any person from that post. We cannot accept this contention. Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under article 311 (1) becomes available to the person holding	 for example	 a civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to that which appointed him. The subsequent authorization made in favour of respondent 1 in regard to making appointments to the post held by the appellant cannot confer upon respondent 1 the power to remove him. On the date of the appellant 's appointment as a Train Lighting Inspector	 respondent 1 had no power to make that appointment. He cannot have	 therefore	 the power to remove him. 53 Besides	 delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An Officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. The Divisional Engineer	 in other words	 does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latter 's power to make appointments to certain posts has been delegated to him. Since the appellant was appointed by the Chief Electrical Engineer and has been removed from service by an order passed by respondent 1 who	 at any rate	 was subordinate in rank to the Chief Electrical Engineer on the date of appellant 's appointment	 it must be held the respondent 1 had no power to remove the appellant from service. The order of removal is in patent violation of the provisions of Article 311 (1) of the Constitution. For these reasons we allow the appeal	 set aside the order passed by the High Court and hold that the order dated August 31	 1976 passed by respondent 1 removing the appellant from service is unconstitutional and	 therefore	 of no effect. The appellant must accordingly be deemed to continue in service until	 if so advised	 the government takes appropriate steps to bring his service to an end. Respondents will pay the costs of the appeal to the appellant. V.D.K. Appeal allowed.

Summary:
The appellant who was appointed as a Train Lighting Inspector	 Nagpur on July 11	 1974 by the Chief Electrical Engineer was removed from service by respondent No. 1; the Divisional Assistant Engineer	 Central Railway Nagpur by his order August 31	 1976. The Writ Petition filed by the appellant in the Bombay High Court challenging the order of removal was dismissed summarily by a Division Bench of that Court. Allowing the appeal by special leave	 the Court ^ HELD: 1. The order of removal is in patent violation of the provisions of Article 311(1) of the Constitution. [53C] 2. article 311(1) of the Constitution provides that no person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. [52A] 3. Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under article 311(1) becomes available to the person holding	 for example	 a civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to that which appointed him. [52 F G] 4. Delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. [53 A B] The Divisional Assistant Electrical Engineer in the instant case does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latter 's power to make appointments to certain posts has been delegated to him the subsequent authorisation made in favour of respondent	 in regard to making appointments to the post held by the appellant cannot confer upon respondent 1 the power to remove him. On the date of the 51 appellant 's appointment as a Train Lighting Inspector	 respondent 1 had no power to make that appointment. He cannot have	 therefore	 the power to remove him. [52H	 53 A B]