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PETITIONER: M. RAMANATHA PILLAI

       Vs.

RESPONDENT: THE STATE OF KERALA & ANR.(With connected        appeals)

DATE OF JUDGMENT27/08/1973

BENCH: SIKRI, S.M. (CJ) BENCH: SIKRI, S.M. (CJ) MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH DWIVEDI, S.N. CHANDRACHUD, Y.V.

CITATION:  1973 AIR 2641            1974 SCR  (1) 515  1973 SCC  (2) 650  CITATOR INFO :  F          1976 SC1199  (7)  RF         1976 SC2233  (9)  RF         1976 SC2437  (20)  RF         1979 SC 621  (27)  R          1980 SC1255  (18)  F          1980 SC1285  (12,27)  R          1982 SC1107  (30,33)  RF         1989 SC 662  (7)

ACT: Constitution  of India, 1950, Arts.510 and 311-Abolition  of post-Effect of.

HEADNOTE: On the questions, (i) whether the Government could abolish a post  ill  ’the service, and (ii) whats the effect  of  such abolition  on  the rights of the holder of the post  at  the time of abolition. HELD : (1) Every sovereign government has a right to abolish a post ill government service in the interest and  necessity of internal Administration.  The creation and abolition of a post  is dictated by policy, exigencies  and  administrative necessity  in the interest of general public, and the  power is not related to the doctrine of pleasure. [520D-E] (2)  The protection afforded by Art. 311 of the Constitution is  limited to the imposition of the three major  penalties, namely,  dismissal,  removal and reduction in  rank.   These words  are  technical words.  Every termination  of  service cannot amount to dismissal or removal.  It is only in  cases where  there  is  a stigma or a loss  of  benefit  that  the removal  or  dismissal would come under  the  Article.   The expression "rank" in the Article has reference to a person’s classification  and not to his particular place in the  same cadre  in the hierarchy of the service to which he  belongs. A  reduction  in rank would be a punishment  if  it  carried penal consequences with it. [521G-522B] Parshotam Lai Dhingra v. Union of India, [1958] S.C.R.  828; Satish Chandra Anand v. The Union of India [1953] S.C.R. 655 and  Shyam  Lal  v. State of U.P. and the  Union  of  India,

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[1955] 1 S.C.R. 26, referred to. (3)  Where  a  person  has a substantive  appointment  to  a permanent post he has 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  dis- qualification found against him on enquiry after due  notice to  him.  An appointment to a temporary post for  a  certain specified period gives the servant 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. [522E-G] Parshotam  Lai Dhingra v. Union of India, [1958] S.C.R.  828 and Mori Ram Deka etc. v. General Manager, N.E.F.  Railways, Maligaon, Pandu, etc. [1964] 5 S.C.R. 683, referred to. (4)  But  a  post  may  be abolished  in  good  faith.   The abolition   of  the  post  may  have  the   consequence   of termination  of  service  of  a  government  servant.   Such termination  however is not dismissal or removal within  the meaning of Art. 311 of the Constitution.  The opportunity of showing  cause against the proposed penalty of dismissal  or removal  does not therefore arise in the case of the  aboli- tion  of  a post.  The abolition is not a  personal  penalty against  the government servant.  It is an executive  policy decision.    Whether  after  abolition  of  the   post   the government servant, who was holding the post would or  could be  offered any employment under the State. would  therefore be a matter of policy decision of the.  Government, because. the  abolition  of  a post does not  confer  on  the  person holding the abolished post any right to hold the post.   The order  abolishing  the post may however lose  its  effective character   if   it  is  established  to  have   been   made arbitrarily,  mala  fide or as a mask of some  penal  action within the meaning of Article 311(2). [522H; 526D-F] 516 (5)  The  observations  in Moti Ram Dek ’a  case  ([1964]  5 S.C.R.  683),  that  a  person  who  substantively  holds  a permanent  post has a right to continue in service,  subject to the rules of superannuation and compulsory retirement and that  ’if for any other reason that right is invaded and  he is  asked  to  leave his service,  the  termination  of  his service  must  inevitably mean the defeat of  his  right  to continue  in service and as such it, is in the nature  of  a penalty  and amounts to removal’ are not authority for  the, proposition  that abolition of a post in good faith  amounts to removal.  The earlier observation in the judgment that  a permanent servant would normally acquire a right to hold the post   until  under  the  rules  he  attained  the  age   of superannuation  or was compulsorily retired or the post  was abolished  shows  that  the exception of  termination  as  a result  of the abolition of a post was not being  considered when the observation was made. [523A-D] Champaklal  Chimanlal Shah v. The Union of.  India [1964]  5 S.C.R. 190, followed. (6)  The  Moti Ram Deka case has not abolished the  doctrine of  pleasure as embodied in Article 310.  That  article  has been made subject to Art. 311 where termination is by way of punishment,  and  in cases where a fixed  term  contract  is made.   Article  310(2)  authorises ’a  provision  in  such- contract  for the payment of compensation to the  government servant  if  before  expiry  of  that  period  the  post  is abolished  or he is required to vacate the post for  reasons not  connected with any misconduct.  The  article  furnishes

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intrinsic  evidence that the right to abolish the post is  a category  of the power exercisable by the Slate.  The  power to  abolish the post is however inherent in every  sovereign Government  and is necessary for the proper functioning  and internal  administration of the State and is  unaffected  by these  limitations on the doctrine of pleasure  embodied  in Art. 310. [525G-526D] (7)  No estoppel could arise against the State in regard  to abolition  of a post.  The courts exclude the  operation  of the  doctrine  of  estoppel,  when  it  is  found  that  the authority  against whom estoppel is pleaded has owed a  duty to the public. [526H] (8)  When   the   exigencies  of   administration   required alterations  in  the  establishment and creation  of  a  new department,  it  is a governmental function’  and  a  policy decision, and no question of mala fides arises. [527C-D] (9)  The  right  to  hold  a post comes to  an  end  on  the abolition of the post which a government servant holds,  and therefore,  he  cannot  complain of  a  violation  of  Arts. 19(1)(f)  and  31  of  the Constitution  when  the  post  is abolished. [527D-E] (10) Article  14 also is not attracted when  the  government servant cannot complain of any discrimination on the  ground that other government servants, similarly situated had  been allowed to remain in service. [527E.  F-G]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 275 of 1971. Appeal by certificate from the judgment and order dated  6th August,  1970  of the Kerala High Court in C.P. No.  931  of 1970.  Civil Appeal No. 2231 of 1970 Appeal  by  certificate from the judgment  and  order  dated 29-1-70  of  the  High  Court  of  Punjab  and  Haryana   at Chandigarh in CIVIL Writ No. 3086 of 1968. Civil Appeal No. 248 of 1971 Appeal  by  certificate from the Judgment  and  Order  dated 30-9-70  of  the  High  Court  of  Punjab  and  Haryana   at Chandigarh in Letters Patent Appeal No. 260 of 1969. M.   K.  Ramamurthy, P.K. Pillai and J. Ramamurthi, for  the appellant (In C. A. No. 275/71) 517 A. R. Somanatha Iyer and A.G. Pudissery, for the respondent CA.  No. 275/71). Gobind  Days, M. N. Shroff and B. D.  Sharma,  for  Attorney General .of India. R.K.  Garg and S.C. Agarwala, for the     intervener. R.  K. Garg and S. C. Agarwala, for the appellants (In C. A. 2231/70 and 248/71). Harbans  Singh and   R. N. Sachthey, for the respondent  (In C. As.    No. 2231/70 and 248/71). The Judgment of the Court was delivered by RAY.  C. J. Civil Appeal No. 275 of 1971 is  by  certificate from the judgment dated 6 August, 1970 of the High Court  of Kerala.   The appellant is M. Ramanatha Pillai. Civil  Appeal  No. 2231 of 1970 is by certificate  from  the judgment  dated  29  September, 1970 of the  High  Court  of Punjab  and  Haryana. The appellants are S. Ajit  Singh  and Jamna Dass Akhtar. Civil  Appeal  No. 248 of 1971 is by  certificate  from  the judgment 30 September, 1970 of the High Court of Punjab  and Harvana.  The  appellants  are  seven in  number.  They  are Kulbhushan Lal,     Krishna Lal, Jagdev Singh, Shanti Sarup,

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Dilawar Singh, Ram Asra  mid Inder Lal. The  facts  in  Civil Appeal No. 275 of 1970  are  these.  A Vigilance Commission was constituted for the State of Kerala by an        order  dated  29 May, 1965. The  Government  of Kerala on 26 October, 1965    sanctioned  the creation of  a temporary post of Vigilance Commissioner     for a period of three  Years from 3 June, 1965. P. D. Nandana Menon  assumed charge as Vigilance Commissioner in that temporary post. By  an order dated 16 April, 1966 the Government  of  Kerala defined the constitution, jurisdiction, powers and functions of  the  Commission. The Order stated  that  the  Commission would  be  beaded  by  a full  time  officer  designated  as Vigilance Commissioner. The Vigilance Commissioner under the order  was to be appointed by the Governor of the State  and was not to be removed or suspended from office except in the manner  provided  for  the  removal  or  suspension  of  the Chairman  of  the Kerala Public Service  Commission.  On  24 January,  1968  the continuance of the  temporary  post  was sanctioned for a period of one     year  with effect from  3 june, 1968. Meanwhile P. D. Nandana Menon    retired    from the post. By an order dated 24 September, 1968 the appellant Ramanatha Pillai   was  appointed  as  Vigilance  Commissioner  on   a consolidated  pay of Rs. 2500 per month for a term of  three years  from  the  date of his assuming  charge  vice  P.  D. Nandana  Menon retired. By an order dated 2  November.  1968 the   Government  of  Kerala  ordered  that  the   Vigilance Commissioner  would hold office for a period of  five  years or.  till  he  attained the age of 60  years  whichever  was earlier.  By an order dated 15 November, 1968  sanction  was accorded  to  the continuance of the temporary post  of  the Vigilance Commissioner till 28 February  , 1970. 518 There was an agreement dated 20 December, 1968 between  tile appellant  Ramanatha  Pillai and the Government  of  Kerala. The  agreement provided that the term of appointment was  to be  for a period of five years from 3 October, 1968 or  till the  appellant  attained the age of 60  years  whichever  is earlier.  Ile agreement further stated that the appellant is not  to  be removed or suspended from office except  in  the manner provided for removal or suspension of the Chairman or Members of the State Public Service Commission. By an order dated 24 February 1970 the Government of  Kerala stated  that the post of Vigilance  Commissioner  sanctioned was  temporary and the ... Present sanction for the post  of Vigilance Commissioner will expire on 28 February, 1970  and that  for  the  staff of the Commission will  expire  on  28 February,   1971".   The  order  further  stated  that   the Government having considered all aspects of the matter  came to the conclusion that there was no need to have a Vigilance Commissioner.   The Government, therefore, ordered that  the post  of  Vigilance  Commissioner would  be  abolished  with effect from 28 February, 1970.  The continuance of the staff of  the  Commission upto 15 March, 1970  was  sanctioned  to enable the office of the Commission to wind up its work.  It may  be stated her-- that ill the Government Order  dated  3 December, 1969 sanction for the continuance of the staff  in temporary posts from 1 March, 1970 to 28 February, 1971  was accorded.   The  affidavit  evidence of  the  Government  of Kerala  about the continuance of the temporary posts in  the staff of the Vigilance Commission till 28 February, 1971  is that  the budget for 1970-71 was prepared in advance of  the presentation  of the’-proposal in the Legislature.   At  the time when the proposals were forwarded by the Administrative Departments   concerned  with  the  establishment   of   the

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Vigilance Commissioner no decision had been taken  regarding the  abolition  of the post of the  Vigilance  Commissioner. After   taking  the  decision  to  abolish   the   Vigilance Commission  the  Government considered  the  feasibility  of omitting  the provisions in the budget, but it was found  to be  too  late to make any changes.  The  post  of  Vigilance Commissioner was sanctioned upto 28 February, 1970.. The  appellant  Ramanatha  Pillai  raised  three   principal contentions in the High Court.  First, that the abolition of the  post of Vigilance Commissioner amounted to  removal  of the appellant from service within the meaning of Article 311 of the Constitution.  Second, that the abolition of the post was  made mala fide.  Third, the appellant entered  into  an agreement  with  the Government and by accepting  the  offer changed  his  position  and the  State  was  precluded  from altering  the  terms  of  agreement  on  the  principle   of estoppel.   The  High  Court  did  not  accept  any  of  the contentions.   The High Court held that the  termination  of service  resulting from the abolition of the post would  not attract  the provisions of Article 311 of the  Constitution. The High Court however added that this would be so when  the abolition of the post was not a colourable exercise of power with a view to removing.the incumbent holding the post  from service.  The High 519 Court in the facts and circumstances came to the  conclusion that  it  was.  impossible to draw any  inference  that  the abolition of the post was. with a motive of doing away  with the services of the petitioner.  The High Court held that no estoppel  could  arise or operate to fetter the  powers  and discretion of the Government if in the interest of  adminis- tration  and in public interest certain alterations  in  the establishment  were made and new posts or  departments  were created.   The reason given by the High Court was that  this would be a governmental function and the court would not sit in judgment on such action and decide whether the course was proper  or not.  The High Court, therefore, held that  there could  not  be any estoppel against the  Government  in  the discharge of duty owed to the public.  The ratio of the High Court  judgment  is  that there cannot  be  an  estoppel  in respect  of  statutory provisions of the governance  of  the State Which are made for the benefit of some one other  than the person against whom the estoppel is asserted. In Civil Appeal No. 2231 of 1970 the questions raised in the High  Court  were whether the abolition of  the  Subordinate Services  Selection Board and the consequential  termination of the services of the Chairman and the Member of the  Board attracted  application of Article 311 of  the  Constitution. The  High Court found that the State Government  decided  in public interest to abolish the Board.  There were bickerings among the Members of the Board.  The Administrative  Reforms Commission  recommended  the abolition of  the  Board.   The appointment  of  the Members was of a  temporary  character. Consequent upon the abolition of the Board there existed  no post on which the appellants could claim appointment. Civil  Appeal  No. 248 of 1971 concerns posts  held  by  the appellants in the Industrial Training Institute in  Haryana. The  appellants were permanent employees- Their  posts  were abolished  with effect from 26 March 1969.   The  Government terminated  their services upon the abolition of the  posts. The appellants raised the similar question as to whether the abolition  of  posts  would  attract  article  311  of   the Constitution.   The  High Court relied on  its  decision  in Civil Appeal No. 2231 of 1970 and held that the abolition of posts did not attract Article 311 of the Constitution.

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The contentions on behalf of the appellant Ramanatha  Pillai were  these.   First,  the  order  abolishing  the  post  is vitiated  by  mala fides of respondent No.  2.  Second,  the abolition  of  the post does not  terminate  the  agreement, dated  20 December, 1968.  Third, the abolition of the  post has the effect of terminating the services of the appellant, and,  therefore, it is invalid by reason  of  non-compliance with  the  provisions of Article 311  of  the  Constitution. Fourth, the order of the Government was made without  giving an  opportunity  to the appellant and thereby  violated  the principles  of natural justice.  It was said that the  order of  Government entailing the civil consequences of  loss  of service could be made only after observing the principles of natural  justice.  Fifth, the principle of estoppel  applies to  the  case that it was not lawful for the  Government  to terminate the services of the appellant. 520 On behalf of the other appellants the contentions are these. The  right to permanent tenure is created by rules or  Acts. The  executive decision cannot put an end to  these  rights. Service Rules create statutory rights to receive salary  and pension  till the- age of superannuation.   These  statutory rights  constitute  property within the meaning  of  Article 19(1)(f), 31(1) and (2) of the Constitution.  The  abolition of  a,  post  is a mere executive  decision  and  it  cannot terminate the statutory tenure of service nor can it  affect fundamental rights without the support of a valid law.   The tenure  cannot  be  taken away by rule or an  Act  which  is inconsistent   with   Article  311  (1)  and  (2)   of   the ’Constitution,  both before and after the amendment of  that Article.   After  amendment of Article  311(1)  a  permanent Government  servant holds office during good  behaviour  and the  doctrine  of pleasure stands negatived  except  to  the extent   saved  expressly  by  Article  310.   A   premature termination  on abolition of post violates Articles  311(2), 19(1)  (f)  and  31 (1) and also Articles  14  and  16.   If termination of employment after notice is bad a  termination without notice without a valid rule is worse. The first question which falls for determination is  whether the Government has a right to abolish a post in the service. The power to create or abolish a post is not related to  the doctrine  of  pleasure.   It is  a  matter  of  governmental policy.   Every sovereign Government has this power  in  the interest  and  necessity of  internal  administration.   The creation  or  abolition  of  post  is  dictated  by   policy decision,  exigencies  of circumstances  and  administrative necessity.  The creation, the continuance and the  abolition of post are all decided by the Government in the interest of administration and general public. The next question is whether abolition of post is  dismissal or removal within The meaning of Article 311.  This question has directly not come up for decision in this Court.   There are  however observations on this aspect in three  decisions of this Court.  These are Parshotam Lal Dhingra v. Union  of India  [1958] S.C.R. 828: Champaklal Chimanlal Shah  v.  The Union of India [1964] 5 S.C.R. 190 and Moti Ram Deka etc. v. General  Manager,  N.E.F. Railways,  Maligaon,  Pandu,  etc. [1964] 5 S.C.R. 683. Article 311 as it stood prior to the Constitution  Fifteenth Amendment Act., 1963 enacted that no person as mentioned  in Article 31 1 (1) 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.  After the Constitution Fifteenth  Amendment Act,  1963  Article 311 states that no person  mentioned  in

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Article 311 (1) shall be dismissed or removed or reduced  in rank  except after an enquiry in which he has been  informed of  all  the  charges against him and  giving  a  reasonable opportunity  of  being heard in respect  of  those  charges. Further, where it is Proposed, after such enquiry, to impose on  him any such penalty of dismissal, removal or  reduction in  rank he has to be riven an opportunity of making  repre- sentation to the penalty proposed. 521 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. Therefore,  Acts  in  respect of  terms  and  conditions  of service   of  persons  are  contemplated.   Such   Acts   of Legislature must however be subject to the provisions of the Constitution.  This attracts Article 310(1).  The proviso to Article  309  makes it competent 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 connection 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 Governor  therein specified.  Article 309 is, therefore,  to be read subject to Article 310. Article  310  deals  with the tenure of  office  of  persons serving  the Union or the State.  Article 310 provides  that such office is held during the pleasure of the President  if the  post is under the Union or during the pleasure  of  the Governor  if the post is under the State.  The’ doctrine  of pleasure is thus embodied in Article 310(1).  Article 310(2) deals with cases of persons appointed under contract.   This Article provides that if the President or the Governor deems it  necessary  to  secure the services of  a  person  having special  qualification, he may appoint him under  a  special contract.   Such a contract may provide for the  payment  to him  of compensation if before the expiration of  an  agreed period  that  post is abolished or he is,  for  reasons  not connected  with  any  misconduct on his  part,  required  to vacate  that  post.  It is noticeable that Article  310  (1) begins  with a clause "except as expressly provided by  this Constitution".   Therefore,  the  other  provisions  in  the Constitution which impinge on Article 310 have the effect of making  Article  310 to be subject to those  Articles.   The exceptions thus contemplated occur in Articles 124, 148, 218 and  324.   Another  important  exception  is  Article  311. Article 311 is however not subject to any other provision of the Constitution. When  Article 311 states that no person shall be  dismissed, 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  it  affords  a protection and security of Government service.  Article  311 applies  to  all  Government  servants  holding   permanent, temporary or officiating post.  The protection afforded by Article  311 is however limited to the imposition  of  three major penalties.  These are dismissal, removal or  reduction in rank.  The words ,’dismissed", "removed" and "reduced  in rank"  are technical words.  Both in the case of removal  or

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dismissal  there  is  a stigma.  It also  involves  loss  of benefit.   There may also be an element of  personal  blame- worthiness. of the Government servant.  Reduction in rank is also a punishment.  The expression "rank" in Article  311(7) has I reference 522 to a person’s classification and not to his particular place in  the same cadre in the hierarchy of the service to  which he   belongs.   Merely  sending  back  a  servant   to   his substantive post has been held not to be a reduction in rank as  a punishment since he had no legal right to continue  in officiating post.  The striking cut of a name from the panel has been held to affect future rights of promotion and to be a reduction in rank. A  reduction  in  rank is a punishment  if  it  carries  pen consequences ,With it.  In Dhingra case (supra) it has  been said that whether a servant is punished by way of  reduction in rank is to be, found by applying one of the two following tests  : whether the servant has a right to the post or  the rank or 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. Any  and  every  termination of  service  cannot  amount  to dismissal  or  removal.  A termination  of  service  brought about by the exercise of ,contractual right is not by itself dismissal  or  removal. (See  Satish Chandra  Anand  v.  The Union  of  India (1953 S.C.R. 665).  Again,  termination  of service by compulsory retirement in terms of a specific rule regulating  the conditions of service is not  tantamount  to infliction  of  a punishment and does  not  attract  Article 311(2).  (See  Shyam Lal v. State of U.P. and the  Union  of India  (1955  1 S.C.R. 26).  Similarly the retirement  of  a permanent servant on his attaining the age of superannuation does not amount to his removal within the meaning of Article 311(2).  In these cases the termination of service does  not ,carry  with  it ,he penal consequences of loss  of  pay  or allowances. The ruling in Dhingra case (supra) is that the protection of Article  311 is afforded to permanent as well  as  temporary posts  or officiating in any of them.  Where a person has  a substantive  appointment to a permanent post he has 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  enquiry after  due notice to him.  This is the statement of  law  in Dhingra  case  as well as Moti Ram Deka  case  (supra).   An appointment  to  a temporary post for  a  certain  specified period  gives the servant 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  service may  be terminated unless his service had ripened into  what is, in the service rules, called a quasi-permanent  service. (See Dhingra case (supra) ). A post may be abolished in good faith.  The order abolishing the post may lose its effective character   if   it  is  established  to  have   been   made arbitrarily,  malafide  or as a mask of  some  penal  action

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within the meaning of Article 311(2). 523 Counsel for the appellants relied on the observations at pp. 706-707  of the Report in Moti-Ram Deka case  (supra).   The observations are these.  "A person who substantively holds a permanent post has a right to continue in service,  subject, of course, to the rule of superannuation and the rule as  to compulsory retirement. if for any other reason that right is invaded  and  he  is  asked.  to  leave  his  service,   the termination  of his service must inevitably mean the  defeat of  his right to continue in service and as such, it  is  in the  nature  of a penalty and amounts  to  removal".   These observations  were  extracted in support of  the  contention that  Moti  Ram Deka case (supra) is an  authority  for  the proposition that abolition of post amounts to removal.  That is  totally  misreading the decision in Moti Ram  Deka  case (supra). The  phrase "if for any other reason that right is  invaded" is  in  juxtaposition to the two exceptions of the  rule  of superannuation  and  the rule of  compulsory  retirement  as exceptions  to the applicability of Article 311.  The  third exception  of termination as a result of the abolition of  a post  was  not  being  considered in  that  portion  of  the judgment  in  Moti Ram Deka case (supra).   Earlier  in  the judgment  in  Moti Ram Deka case (supra) it is said  that  a permanent servant would normally acquire a right to hold the post   until  under  the  rules  he  attained  the  age   of superannuation  or was compulsorily retired or the post  was abolished.   The  same  view is  taken  in  Champaklal  case (supra). In Moti Ram Deka case (supra) it was said that the statement of  law  in  Dhingra  case (supra)  "in  the  absence  of  a contract, express or implied, or service rule the  permanent servant cannot be turned out" would permit the authority  to terminate the service of a permanent servant under terms  of contract  or  service rules without taking  the  case  under Article 311 though such termination might amount to  removal or compulsory retirement.  Ibis Court in Moti Rant Deka case (supra) did not agree with this statement of law in  Dhingra case  (supra) and laid down the law to be that where a  rule is alleged to violate the constitutional guarantee  afforded by  Article  311 (2) the argument of  contract  between  the parties  and its binding character is wholly  inappropriate. The  introduction  of the two clauses "in the absence  of  a contract, expressed or implied, or service rule" in Dhingra. case  (supra) was by reason of consideration of Rule  49  in that  case. Rule 49 spoke of termination of employment of  a prohibationer  or a temporary servant or a servant  under  a contract  not to amount to removal or dismissal  within  the meaning of that Rule.  That is why these two clauses, it was pointed  out in Moti Ram Deka case, would have no  relevance or application to permanent servants. In other words, it was said that the two tests laid down  in Dhingra  case (supra) first whether the servant had a  right to  hold the post and whether he had been visited with  evil consequences  of  the  kind referred  to  therein  were  not cumulative  but were alternative.  Therefore, if  the  first test  was satisfied termination of the  permanent  servant’s services  would amount to removal because his right  to  the post  is prematurely invaded.  This ruling in Moti Ram  Deka (supra) is 524 on the relevant issue as to whether the order of termination with notice as contemplated in Rule 149 (3) was valid.  Such a rule was found to be a clear infraction of Article 31 1.

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The  statement  of law in Dhingra case (supra) that  in  the absence  of  a contract, express or implied,  or  a  service rule,  a permanent servant cannot be turned out of his  post unless  the  post  is abolished or unless he  is  guilty  of misconduct was examined In Moti Ram Deka case. In  Moti  Ram  Deka case (supra) it has been  said  that  in regard  to temporary servants or servants on  probation  the terms  of  contract  or service rules may  provide  for  the termination  of the service on notice of a specified  period or  on  payment  of salary for the said period,  and  if  in exercise  of  the  power thus conferred the  services  of  a temporary  or probationary servant are terminated,’  it  may not necessarily amount to removal. , If it is shown that the termination   of   services  is  no  more   than   discharge simpliciter  effected  by  virtue of the  contract,  or  the relevant  rules,  Article 311 (2) may not be  applicable  to such  a case, If, however, the, termination of  a  temporary servant’s service in substance represents a penalty  imposed on  him  or punitive action is taken against him  then  such termination would amount to removal and Article 311(2) would be  attracted.  The position would be the same in regard  to reduction in rank of an officiating servant. The termination of the service of a permanent servant on the terms  of  a contract or under a service rule  will  attract Article 311 if such termination is in the nature of  penalty and  amounts to removal.  This statement of law in Moti  Ram Deka  case (supra) is on the consideration of  Rules  148(3) and  149(3) of the Indian Railway establishment  Code,  Rule 148(3)  deals with non-pensionable railway  servants.   Rule 149(3)  deals with other railway servants.  Both  the  rules provided  that  the  service of railway  servant  "shall  be liable  to  termination  on notice on  either  side  of  the periods  shown below." Such notice is ’not however  required under  those’  Rules 148(3)149(3).in cases of  dismissal  or removal as a disciplinary measure after compliance with  the provisions of clause (2)of Article 311 of the  Constitution, retirement  on  attaining  the age  of  superannuation.  and termination of service due to mental or physical incapacity. In Moti Ram.  Deka case (supra) it was held that neither  of the  two  rules contemplated an enquiry and in none  of  the actual cases there the procedure’ prescribed by Article  311 (2) was followed.  In Moti Ram Deka case (supra) Rule 149(3) which  permitted  termination  for service  with  notice  in cases  of misconduct, to which the second part of  the  Rule applied was found to, be unconstitutional. Rules  148 and 149 in Moti  Ram Deka case  (supra)  referred to;  retirement  on superannuation and  termination  due  to physical  or mental incapacity.  These  considerations  were not  fixed on any ad hoc basis and did not involve  exercise of  any  discretion.  these  Rules  would  apply  uniformity servants under those categories. 525 is  in this background that the two clauses "in the  absence of  a  contract expressed or implied, or  service  rule"  in Dhingar case (supra) were read to support the reasoning that in  regard to a permanent civil servant the  termination  of his services otherwise than under the rule of superannuation or compulsory retirement would amount to removal.  Rules 148 and 149 authorised Administration to terminate the  services of  all  the  permanent servants  on  giving  notice.   That clearly amounted to the removal of the servant in question. Argument  was  advanced in Moti Ram Deka case  (supra)  that Article  310(1) and Article 311 are to be construed in  such manner  that  the pleasure contemplated by Article  310  (1) does  not become illusory.  The contention was that  Article

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311  (2)  was in the nature of proviso and an  exception  to Article  310 and in all cases falling outside the  scope  of Article  311 the pleasure of the President or  the  Governor must  be allowed to rule.  This Court in Moti Ram Deka  case (supra)  said that the pleasure of the President has  to  be exercised  in  accordance with the requirements  of  Article 311.  Once  it is shown that a permanent  civil  servant  is removed from service Article 311 (2) would apply and Article 310  (1) cannot be invoked independently with the object  of justifying  the contravention of the provisions  of  Article 311(2) Where it was said in Moti Ram Deka (Supra) that the order of termination could be effective after complying with  Article 311  it  was presumed that the provisions  of  Article  311, viz., issue of the charge-sheet, enquiry would be applicable to  such cases of termination.  With regard to abolition  of post and consequential termination no charges could normally be  framed and no enquiry could be held.   Therefore,  apart from  the  consideration  that  abolition  of  post  is  not infliction  of  a  penalty  like  dismissal  or  removal  or reduction  in rank, the framing of charge, the  enquiry  and opportunity  of  showing  cause against  the  imposition  of penalty  cannot normally apply to the case of  abolition  of post.   The  discharge of the civil servant  on  account  of abolition of the post held by him is not an action which  is proposed  to  be taken as a personal Penalty but  it  is  an action  concerning  the  policy  of  the  State  whether   a permanent post should continue or not. Counsel on behalf of the appellants contended that the power to abolish the post is derived from the doctrine of pleasure as  embodied  in Article 310 and since Moti  Ram  Deka  case (supra)  has abolished the doctrine of pleasure there  would not exist any power to abolish the post.  This contention is unsound.  The power to abolish any civil post is inherent in every sovereign Government.  This power is a policy decision exercised by the executive.  This power is necessary for the proper functioning and internal administration of the State. The doctrine of pleasure as embodied in Article 310 has  not been  abolished in Moti Ram Deka case (supra).  It has  been made  subject  to  Article 311.  The  doctrine  of  pleasure cannot be invoked to terminate the services in contravention of  Article 31 1. Article 310(2) throws a decisive light  on the  nature of tenure of office provided by Article  310(1). Article  310(2)  recognises the consequences of  service  at pleasure  and  expressly overrides them in  a  very  limited class of cases.  These cases are where a fixed term con- 526 tract  is  made.   Article  310(2),  authorises  payment  of compensation   to  a  government  servant  if   before   the expiration  of that period the post is abolished or he,  for reasons  not connected with any misconduct, is  required  to vacate,  the post.  The termination under Art. 310(2) is  in cases   of   contract   having   specific   provisions   for compensation.  Moti Ram Deka case (supra) has not  abolished the doctrine of pleasure as embodied in Article 310. Article 310  has been made subject to Article 311 where  termination is by way of punishment. Counsel  for  the appellants contended  that  since  Article 310(2)  refers to the event of abolition of post such  right is  limited by provision for compensation and the  necessity of  securing  the  services of  the  person  having  special qualification.   It is, therefore, argued on behalf  of  the appellants  that  there was no unconditional  right  in  the Executive  or  the  legislature to abolish  the  post.   The concept  of  contract  of  payment  of  compensation  is  an

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exception to the doctrine of pleasure as embodied in Article 310(1).   The reference to abolition of post in Article  310 (2) is in relation to payment of compensation as a provision in  the contract.  The provisions of Article 310(2)  furnish intrinsic  evidence that the right to abolish the post is  a category of power exercisable by the State.  Article 310  is prefaced   by   the  words  "expressly  provided   by   this Constitution." The   abolition  of  post  may  have  the   consequence   of termination  of  service  of  a  government  servant.   Such termination  is not dismissal or removal within the  meaning of  Article  311 of the Constitution.   The  opportunity  of showing  cause against the proposed penalty of dismissal  or removal does not therefore arise in the case of abolition of post.   The  abolition  of post is not  a  personal  penalty against the government servant.  The abolition of post is an executive  policy decision.  Whether after abolition of  the post. the Government servant who was holding the post  would or  could  be offered any employment under the  State  would therefore  be a matter of policy decision of the  Government because the abolition of post does not confer on the  person holding the abolished post any right to hold the post. The High Court was correct in holding that no estoppel could arise against the State in regard to abolition of post.  The appellant   Ramanathan  Pillai  Knew  that  the   post   was temporary.   In  American  Jurisprudence  2d  at  page   783 paragraph  123  it  is stated "Generally,  a  state  is  not subject  to  an  estoppel  to  the  same  extent  as  in  an individual or a private corporation.  Otherwise it might  be rendered  helpless  to  assert  its  powers  in  government. Therefore  as a general rule the doctrine of  estoppel  will not be applied against the state in its governmental, public or  sovereign capacity.  An exception how-, ever  arises  in the  application  of  estoppel  to the  State  where  it  is necessary  to  prevent fraud or  manifest  injustice".   The estoppel  alleged by the appellant Ramanathan Pillai was  on the  ground  that he entered into an agreement  and  thereby changed  his  position  to his detriment.   The  High  Court rightly  held that the, courts exclude the operation of  the doctrine  of estoppel, when it is found that  the  authority against  whom  estoppel is pleaded has owed a  duty  to  the public against whom the estoppel cannot fairly operate. 527 Counsel for the appellant Ramanathan Pillai repeated in this Court  the  allegations  of  mala  fide  in  regard  to  the abolition  of post.  Broadly the allegations were two  fold. First,  that  the  second respondent made a  speech  in  the Assembly  and made references to the  appellant-which  would show  that the second respondent was biased  and  prejudiced against  the appellant.  Second, after the abolition of  the Vigilance  Commission  a new department  was  created.   The functions  of the new department were the same as  those  of the Vigilance Commission.  Therefore. the object was not  to abolish  the Vigilance Commission and only to terminate  the services  of the. appellant.  The High Court held  that  the State   entertained  doubts  as  to  the   advisability   of establishing   Vigilance  Commission  even  before  it   was constituted  in  1965.  After the retirement  of  the  first Vigilance Commissioner P. D. Nandana Menon the question  was again considered.  Views were expressed that the  Commission had  not worked satisfactorily.  The State,  therefore,  de- cided  to abolish the Vigilance Commission.  The High  Court rightly held that the exigencies of administration  required alterations  in  the  establishment and creation  of  a  new department.   This is a governmental function and  a  policy

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decision.   The  High Court was correct that  there  was  no reason  to hold that there was colourable exercise of  power by the State. The right to hold a post comes to an end on the abolition of the  post  which a Government servant holds.   Therefore.  a Government servant cannot complain of a violation of Article 19(1)  (f) and Article 31 of the Constitution when the  post is abolished. Article  14  is not attracted on the facts  of  the  present cases.  The appellant in C.A. No. 275 of 1971 was  appointed to  the ad hoc post of the Vigilance Commissioner.  In  C.A. No.  2231  of  1970  the Chairman and  the  Members  of  the Subordinate Services Selection Board were discharged on  the abolition  of  that Board.  Their cases are similar  to  the case of the appellant in C.A. No. 275 of 1971.  In C.A.  No. 248  of 1971 the appellants were permanent teachers  of  the Training Institute.  Their duty was to coach the trainees in certain  subjects.   As  the  trainees  did  not  offer  the subjects  in  which the appellants  were  specialists,  they became  surplus.  Their cases also resemble the case of  the appellant  in C.A. No. 275 of 1971.  On the facts  of  these cases  the  appellants  cannot  complain  of  discrimination because  it  could not be and has not been  shown  that  the Government  servants similarly situated had been allowed  to remain in service. The  High  Court  was correct in all the  three  appeals  in coming  to a conclusion that the abolition of post does  not attract Article 31 1. For   the  aforesaid  reasons  the  appeals  fail  and   are dismissed.  In view of the fact that the High Court did  not make any order as to costs in these appeals each party  will pay and bear his own costs in the three appeals. V.P.S. Appeals dismissed. 528