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PETITIONER: KRISHNA KUMAR

       Vs.

RESPONDENT: DIVISIONAL ASSISTANT ELECTRICAL ENGINEERCENTRAL RAILWAY AND

DATE OF JUDGMENT17/07/1979

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) FAZALALI, SYED MURTAZA VENKATARAMIAH, E.S. (J)

CITATION:  1979 AIR 1912            1979 SCR  (1)  50  1979 SCC  (4) 289

ACT:      Constitution of  India, 1950,  Article 311(1)-Power  to remove an  employee rests only with the person who appointed him-A delegate’s  status is  not enhanced  to  that  of  the delegator by  virtue of  delegation of power of appointment- Date  of   appointment  is   the  starting  point  when  the constitutional guarantee under Art. 311(1) becomes available to the person holding a civil post.

HEADNOTE:      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. Art.  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 Art. 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]

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    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]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: 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

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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 Art.  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

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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. 54