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PETITIONER: MOTI RAM DEKA ETC.

       Vs.

RESPONDENT: GENERAL MANAGER, N.E.F. RAILWAYS,MALIGAON, PANDU, ETC.(With

DATE OF JUDGMENT: 05/12/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SUBBARAO, K. WANCHOO, K.N. HIDAYATULLAH, M. GUPTA, K.C. DAS SHAH, J.C. AYYANGAR, N. RAJAGOPALA

CITATION:  1964 AIR  600            1964 SCR  (5) 683  CITATOR INFO :  R          1964 SC1585  (5,7,10,11,12)  R          1965 SC 280  (5)  D          1965 SC1567  (5)  F          1966 SC1607  (32)  D          1967 SC1260  (10,11)  R          1970 SC 143  (6)  RF         1970 SC1314  (15,16)  RF         1971 SC1516  (7)  R          1971 SC1547  (5)  RF         1972 SC 908  (9)  E          1973 SC2641  (15,22,24,25,TO 34)  R          1974 SC2192  (46,49,52,53)  MV         1975 SC1331  (171)  R          1975 SC2299  (485)  R          1980 SC1382  (81)  D          1982 SC1107  (24,26,30,31)  D          1982 SC1126  (8)  D          1985 SC 551  (29,33)  F          1985 SC 722  (4)  E&R        1985 SC1416  (43,50,57,58,106,107)  RF         1986 SC 555  (6)  F          1987 SC2135  (7)  RF         1989 SC 662  (8)  D          1989 SC1843  (17)  R          1991 SC 101  (8,21,32,33,39,41,43,48,56,57,  RF         1992 SC 165  (18)

ACT: Civil   Service-Termination  of  services  of  a   permanent servant-Validity  of Rules 148(3) and 149(3) of the  Railway Establishment  Code vis-a-vis Art. 311(2)-If  Rules  violate Art. 14-Scope of exercise of Pleasure of President-Basis  of superannuation-Rule  compulsory   retirement  when  can   be applied-Constitution of India, 1950, Arts. 14, 310,  311(2)- Indian  Railway  Establishment Code,  Vol 1,  Rules  148(3), 149(3).

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HEADNOTE: Moti Ram Deka was a peon employed by the North East Frontier Railway and Sudhir Kumar Das was a confirmed clerk.  General Manager, North East Frontier Railway, terminated th services under  R. 148(3) of Indian Railway Establishment Co Vol.  1. They  challenged  the termination of their services  but  th writ  petitions were rejected by the Assam High Court and  t came to this court by special leave. Priya  Gupta  was an Assistant Electrical Foreman  in  North Eastern Railway.  His services were terminated under R. 148. His  writ  petition and Letters  Patent  Appeal  challenging termination   of  his  services  having  been  rejected   by Allahabad  High  Court,  he came to this  Court  by  special leave. Tirath  Ram  Lakhanpal was a Guard employed by  the  Northen Railway.   His services were terminated under R.  148.   His writ  petition and Letters Patent Appeal were  dismissed  by Punjab  High  Court  and he came to this  court  by  special leave. S.B. Tewari, Parimal Gupta and Prem Chand Thakur employed in the.   North Eastern Frontier Railway.  Their  service  were terminated  under R. 149.  Their writ petitions  challenging termination  of  their services were accepted by  the  Assam High  Court  and  Union of India came to  this  Court  after getting a certificate of fitness from the Assam High Court. The  only question involved was the constitutional  validity or  otherwise  of  Rules 148(3) and  149(3)  of  the  Indian Railway Establishment Code on the ground that they  violated Arts. 14 and 311(2) of Constitution of India. Held:     By  majority by Gajendragadkar,  Wanchoo,  Hidaya- tullah,  Ayyangar,  Subba  Rao and  Das  Gupta  JJ.(Shah  J. dissenting) 684 that Rules 148(3) and 149(3) of Indian Railway Establishment Code were invalid. Per Gajendragadkar, Wanchoo, Hidayatullah  and Ayyangar, jj. Rules  148(3)  and 149(3) are invalid inasmuch as  they  are inconsistent  with  the  provisions of  Arts.  311(2).   The termination of the services of a permanent servant which  is authorised  by those rules, is no more and no less than  his removal  from service and hence Art. 311(2) must  come  into play  in  respect of such cases.  The rule  which  does  not require compliance with the procedure prescribed under  Art. 311(2) must be struck down as invalid. A  person  who substantively holds a permanent  post  has  a right  to  continue  in service, subject  to  the  rules  of superannuation and 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.  In other  words,  termination of the services  of  a  permanent servant  otherwise  than  on  ground  of  superannuation  or compulsory retirement, must per se amount to his removal and if by R. 148(3) or R. 149(3), such a termination is  brought about, the rule clearly contravenes Art. 311(2) and must  be held to be invalid. Rules 148(3) and 149(3) contravene Art. 14 of the  Constitu- tion.   It  is  difficult  to  understand  on  what   ground employment by the Railways alone can be said to constitute a class  by  itself for the purposes of framing  the  impugned rules.   If considerations of administrative  efficiency  or exigencies  of  service justify the making of such  a  rule, such  rules  should have been framed  in  other  departments also.

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The  pleasure of the President has lost some of its  majesty and power as it is controlled by the provisions of Art. 311. Rules of superannuation are based on considerations of  life expectation, mental capacity of civil servants having regard to climatic conditions under which they work and the  nature of the work they do.  They are not fixed on any ad hoc basis and  do  not involve the exercise of any  discretion.   They apply  uniformly  to all public servants falling  under  the category in respect of which they are framed.  There can  be no  analogy  between the rule of  superannuation  and  rules 148(3) and 149(3) of the Code. If  any  rule permits the appropriate  authority  to  retire compulsorily  a civil servant without imposing a  limitation in that behalf that such civil servant should have put in  a minimum  period of service, that rule would be  invalid  and the  so-called retirement ordered under the said rule  would amount to removal of the civil servant within the meaning of Art. 311(2). 685 Where  a  rule  is alleged  to  violate  the  constitutional guarantee afforded by Art. 311(2), the argument of  contract between  the  parties and its binding  character  is  wholly inappropriate. Per  Subba  Rao, J.-Rules 148(3) and 149(3) which  confer  a power  on  the appointing authority to  remove  a  permanent servant  on notice, infringe the  constitutional  protection guaranteed  a Government servant under Arts. 14 and  311  of the  Constitution A permanent post and rules such as  148(3) and  149(3)  cannot  stand  together  and  the  latter  must inevitably yield to the former. It is neither the phraseology nor the nomenclature given  to the  act of termination of service that is material but  the legal  effect  of  the  action taken  that  is  decisive  in considering  the  question whether a Government  servant  is dismissed  or  not.   Whether the services  of  a  permanent Government  servant  are terminated by giving him  15  day’s notice or whether his services are dispensed with before the age of superannuation by way of compulsory retirement  under or outside a rule of compulsory retirement, the  termination deprives him of his title to the permanent post.  If in  the former  case it amounts to dismissal,in the  latter  case,it must  be  equally  so.   In  both  cases,  Art.  311(2)   is attracted. Compulsory retirement before age of superannuation is not an incident of tenure.  It does not work automatically.  It  is not conceived in the interest of the employee.  It is a mode of  terminating  his  employment at the  discretion  of  the appointing  authority.   As a matter of fact,  whatever  the language used in that connection, it is a punishment imposed on him.  It not only destroys his title but also  inevitably carries  with  it a stigma and hence such a  termination  is dismissal or removal within the meaning of Art. 311. A title to an office must be distinguished from the mode  of its  termination.   If a person has title to an  office,  he will  continued to have it till he is dismissed  or  removed from  there.   Terms  of statutory  rules  may  provide  for conferment of a title to an office and also for the mode  of protecting it.  If under such rules, a person acquires title to an office, whatever mode of termination is prescribed and whatever phraseology is used to describe it, the termination is  neither more nor less than a dismissal or  removal  from service and that inevitably attracts the provisions of  Art. 311  of  the Constitution.  The argument that  the  mode  of termination   prescribed  derogates  from  the  title   that otherwise would have been conferred on the employee mixes up

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two  clear concepts of conferment of title and the  mode  of its deprivation.  Article 311 is a constitutional protection given  to  Government  servants, who have  title  to  office against  their arbitrary and summary dismissal.   Government cannot  by rule evade the provisions of Art.  311.   Parties also  cannot contract themselves-out of  the  constitutional provision Per  Das  Gupta,  J. Rule 148(3)  does  not  contravene  Art 311(2).  A railway servant to whom R. 148(3) applied has two 686 limitations  put on his right to continue in service,  viz., termination  on attaining a certain age and  termination  of service  on  a  notice under R. 148(3).   Where  service  is terminated  by  order  of  retirement  under  R.  2046,  the termination  is of a service where the servant has no  right to  continue and it is not removal or  dismissal.   Likewise when  service is terminated by notice under R.  148(3)  that termination is not removal or dismissal. The  words  ’removal’ and ’dismissal’ in Art. 311  mean  and include  only those terminations of service where a  servant has acquired a right to continue in the post on the basis of terms and conditions of service and such other  terminations where though there is no such right, the order has  resulted in loss of accrued benefits.  Terminations of service  which do not satisfy either of these two tests do not come  within any of these words. Both Arts. 309 and 310 are subject to Art. 311.  If any rule is made under Art. 309 as regards conditions of service of a Government servant in the matter of his dismissal or removal or reduction in rank, it has to comply with the requirements of  Art.  31 1. Before an order dismissing  or  removing  or reducing  a Government servant in rank is made by  President or  Governor  in  exercise of  his  pleasure,  President  or Governor  has  to comply with the  requirements  of  311(2). Under Art 310, all servants of the State hold office  during the  pleasure of the President or Governor as the  case  may be.   That means that the officer has no right to  be  heard before his services are terminated.  Article 311 provides an exception in the case of removal or dismissal. However,  R. 148(3) contravenes Art. 14 as it does not  give any  guidance  for exercise of discretion by  the  authority concerned and hence is invalid. Per  Shah,  J.Rules  148(3)  and  149(3)  do  not   infringe Art.311(2) or Art. 14of the Constitution.  There is  neither logic  nor law in support of the contention that  r.  148(3) contravenes  Art.  311(2).  The  termination  of  employment under r. 148(3)does not involve the public servant concerned in loss of any right which he has already acquired.  It does not  amount to loss of a post to which he is entitled  under the  terms of his employment because the right to a post  is necessarily  circumscribed by the conditions  of  employment which  include r. 148(3).  It also does not cast any  stigma upon him. Mere  determination  of  employment, of  a  public  servant, whether  he  is  a  temporary  employee,  a  probationer,  a contractual  appointee or appointed substantively to hold  a permanent  post,  will not attract the  provisions  of  Art. 311(2)  unless the determination is imposed as a  matter  of punishment.   A railway servant who has accepted  employment on  the  conditions  contained in the  rules,  cannot  after having obtained employment, claim that the conditions  which were  offered to him and which he accepted, are not  binding upon him.  The sole exception to that rule is in cases where the 687

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condition prescribed by contract or statutory regulations is void  as  inconsistent with  the  constitutional  safeguard. This  exception  is founded not on any right in  the  public servant  to  elect, but on t invalidity of the  covenant  or regulation.   There  is  no  distinction  between  cases  of termination  of employment resulting from attaining the  age of  superannuation or from orders of  compulsory  retirement terminating temporary employment or employment on  probation and  orders  terminating employment after  notice  under  R. 148(3) An  appointment  to a public post is always  subject  to  th pleasure  of  the President, the exercise of  such  pleasure being restricted in the manner provided by the Constitution. A person appointed substantively to a post does not  acquire a right t hold the post till he dies.  He acquires merely  a right  t hold the post subject to the rules.  If  employment is  validly  terminated,  the  right to  hold  the  post  is determined  even apart from th exercise of the  pleasure  of the  President or the Governor. public servant cannot  claim to remain in office so long as he is of good behavior.  Such a  concept  of  the tenure of a  public  servant’s  post  is inconsistent with Arts. 309 and 310 of the Constitution. Rules  148(3)  and  149(3) do not infringe Art.  14  of  the Constitution.  Art. 14 forbids class legislation but it does not  forbid  reasonable classification for  the  purpose  of legislation.  special conditions in which the railways  have to  operate and t interests of the nation which they  serve, justify  the classification If for the purpose  of  ensuring the  interests and safety of the public and the  State,  the President  has reserved to the Railway Administration  power to  terminate  employment under the Railways, it  cannot  be assumed  that  such  vesting of authority  singles  out  the railway  servants for a special or discriminatory  treatment so  as  to expose the rule which authorises  termination  of employment  to the liability to be struck off as  infringing Art. 14. It  is  true that R. 148(3) does not expressly  provide  for guidance to the authority exercising the power conferred  by it,  but on that account, the rule cannot be said to  confer an  arbitrary  power  and  be  unreasonable  or  be  in  its operation unequal.  The power exercisable by the  appointing authority  who  normally is if not the  General  Manager,  a Senior Officer of the Railways.  In considering the validity of an order of determination of employment under r. 148,  an assumption that the power may be exercised mala fide and  on that  ground discrimination may be practiced, is wholly  out of place.  Because of the absence of specific directions  in R. 148, governing the exercise of authority conferred the by the  power to terminate employment cannot be regarded as  an arbitrary  power  exercisable  at  the  sweet  will  of  the authority when having regard to the nature of the employment and the service to be rendered, importance of the  efficient functioning  of  the  rail  transport  in  the  interest  of national economy and the 688 status of the authority invested with the exercise of power, it may reasonably be assumed that the exercise of the  power would  appropriately  be  exercised for  the  protection  of public interest or on grounds of administrative convenience. Power  to  exercise  discretion is  not  necessarily  to  be assumed  to  be  a  power  to  discriminate  unlawfully  and possibility  of  abuse  of power  will  not  invalidate  the conferment of power. Case law referred to.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 711-713  of 1962. Appeals by special leave from the judgments and order  dated May 27, 25, 1960, of the Assam High Court in Civil Rule Nos. 3  and 25 of 1960 respectively and December 15, 1959 of  the Allahabad High Court in Special Appeal No. 502 of 1958. CIVIL APPEAL No. 614 OF 1962. Appeal  by special leave from the order dated April 6,  1961 of  the  Punjab  High Court in  Letters  Patent  Appeal  No. 81/1961. CIVIL APPEALS Nos. 837 To 839 of 1963. Appeals from the judgment and order date January 18, 1963 of the Assam High Court in Civil Rule 386 to 388 of 1961. B.C. Ghose and P.K. Chatterjee, for the appellants (in C. A. Nos. 711 to 713/1962). I.M. Lall and V.D. Mahajan, for the appellant (in C.A.  Nos. 714 of 1962). S.V.  Gupte,  Additional Solicitor-General, Naunit  Lal  and R.H.  Dhebar,  for  the  respondents  (in  C.A.  Nos.   711- 714/1962). C.K. Daphtary, Attorney-General, R. Ganapathy Iyar and  R.H. Dhebar, for the appellants (in C.A. Nos. 837-839/1963). B.C. Ghosh and P.K. Chatterjee, for the respondents (in C.A. Nos. 837-839/1963). R.K. Garg, M.K. Ramamurthi, S.C. Agarwal and D.P. Singh, for the intervener (in C.A. No. 711/ 1962.) 689 R.K. Garg and P.K. Chatterjee, for the intervener ,(in  C.A. Nos. 837-839./1963). December  5, 1963.  The Judgment of P.B. Gajendragadkar,  K. N. Wanchoo, M. Hidayatullah and N. Rajagopala lyyangar,  JJ. was  delivered by Gajendragadkar J. K. Subba Rao,  and  K.C. Das  Gupta  JJ. delivered separate Opinion s. J.C.  Shah  J. delivered a dissenting Opinion. GAJENDRAGADKAR  J.  These two groups of  appeals  have  been placed before us for hearing together, because they raise  a common  question  of  law in regard  to  the  Constitutional validity of Rules 148(3) and 149(3) contained in the  Indian Railway  Establishment Code, Vol. 1. (hereafter  called  the Code).  The first group consists of four appeals.  C.A. Nos. 711  &  712 of 1962 arise from two petitions  filed  by  the appellants  Moti Ram Deka and Sudhir Kumar Das  respectively in  the Assam High Court.  Deka was a peon employed  by  the North  East  Frontier Railway, whereas Das was  a  confirmed clerk.   They alleged that purporting to exercise its  power under  Rule  148 of the Code, the  respondent,  the  General Manager North East Frontier’ Railway, terminated their  ser- vices  and  according  to them,  the  said  termination  was illegal inasmuch as the Rule under which the impugned orders of termination had been passed, was invalid.  This plea  has been rejected by the Assam High Court and the writ petitions filed  by  the two appellants have been  dismissed.   It  is against  these  orders of dismissal that they have  come  to this Court by special leave. Civil Appeal No. 713 of 1962 arises out of a petition  filed by the appellant Priya Gupta who was an Assistant Electrical Foreman  employed by the North Eastern  Railway,  Gorakhpur. His  services  having  been  terminated  by  the  respondent General Manager of the said Railway, he moved the  Allahabad High Court under Art. 226 of the Constitution and challenged the  validity of the order terminating his services  on  the ground  that  Rule  148  of  the  Code  was  invalid.    The

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appellant’s plea has been rejected 1/SCI/64-44 690 by the said High Court both by the learned single Judge  who heard his petition in the first instance and by the Division Bench  which heard his Letters Patent Appeal.  That  is  how the appellant has come to this Court by special leave. Civil  Appeal  No. 714/1962 arises out of  a  writ  petition filed  by  Tirath  Ram Lakhanpal who was  a  Class  A  Guard employed  by the Northern Railway, New Delhi.  His  services were  terminated  by the Respondent General Manager  of  the said  Railway  r  under Rule 148 of the Code  and  his  writ petition  to quash the said order has been dismissed by  the Punjab High Court.  The learned single Judge who heard  this writ  petition rejected the pleas raised by  the  appellant, and  the Division Bench which the appellant moved by way  of Letters Patent Appeal summarily dismissed his Appeal.  It is this  dismissal  of  his Letters  Patent  Appeal  which  has brought the appellant to this Court by Special Leave.   That is  how this group of four appeals raises a common  question about the validity of Rule 148. The next group consists of three appeals which challenge the decision of the Assam High Court holding that the orders  of dismissal  passed by appellant No. 2, the  General  Manager, North  East Frontier Railway, against the  three  respective respondents  S.B.  Tewari,  Parimal  Gupta  and  Prem  Chand Thakur,  under  Rule 149 of the Code, were  invalid.   These three  respondents  had  moved  the  Assam  High  Court  for quashing the impugned orders terminating their services, and the  writ petitions having been heard by a special Bench  of the said High Court consisting of three learned Judges,  the majority opinion was that the impugned orders were orders of dismissal and as such, were outside the purview of Rule 149. According to this view, though Rule 149 may not be  invalid, the impugned orders were bad because as orders of  dismissal they  were not justified by Rule: 149.  The-  minority  view was  that Rule 149 itself is invalid, and so,  the  impugned orders were automatically invalid.  In the result, the three writ petitions 691 filed  by the three respondents respectively  were  allowed. That  is  why the Union of India and  the  General  Manager, N.E.F. Railway, appellants 1 & 2 respectively, have come  to this  Court  with a certificate granted by  the  Assam  High Court,.  and  they  challenge the correctness  of  both  the majority  and  the  minority views.  Thus,  in  these  three appeals,  the question about the validity of Rule 149  falls to be considered. The  first  group  of  four appeals was  first  heard  by  a Constitution  Bench  of five Judges for some time.   At  the hearing before the said Bench, the learned Addl.  Solicitor- General  conceded  that the question about the  validity  of Rule  148 had not been directly considered by this Court  on any  occasion,  and  so, it could not be said  that  it  was covered by any previous decision.  After the hearing of  the arguments before the said Bench had made some progress,  the learned  Addl.   Solicitor-General  suggested  that  he  was strongly  relying  on  certain  observations  made  in   the previous decisions of this Court and his argument was  going to  be  that the said observations are consistent  with  his contention  that Rule 148 is valid and in fact,  they  would logically  lead  to that inference.  That is why  the  Bench took the view that it would be appropriate if a larger Bench is  constituted to hear the said group of appeals,  and  so, the matter was referred to the learned Chief Justice for his

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directions.   Thereafter, the learned Chief Justice  ordered that  the  said group should be heard by a larger  Bench  of seven  Judges  of this Court.  At that time,  direction  was also  issued  that the second group of three  appeals  which raised the question about the validity of Rule 149 should be placed for hearing along with the first group.  In fact, the learned  counsel appearing for both the parties in the  said group themselves thought that it would be appropriate if the two  groups of appeals are heard together.  That is how  the two groups of appeals have come for disposal before a larger Bench;  and so, the main question which we have to  consider is whether Rule 148(3), and Rule 149(3) which has superseded it are valid.  The contention of the 692 railway  employees concerned is that these Rules  contravene the Constitutional safeguard guaranteed to civil servants by Art.  311(2).  It is common ground that if it is  held  that the  Constitutional guarantee prescribed by Art. 311(12)  is violated  by the Rules, they would be invalid; on the  other hand  the  Union  of India and  the  Railway  Administration contend  that the said Rules do not contravene Art.  311(2), but are wholly consistent with it. At this stage, it would be. convenient to refer r to the two Rules.   Rule 148 deals with the termination of service  and periods of notice.  Rule 148(1) deals with temporary railway servants;  R. 148(2) deals with apprentices, and  R.  148(3) deals with other (non-pensionable) railway servants.  It  is with R. 148(3) that we are concerned in the present appeals. It reads thus:-               "(3)    Other    (non-pensionable)     railway               servants:The    service   of    other    (non-               pensionable) railway servants shall be  liable               to  termination on notice on either  side  for               the  periods shown below.  Such notice is  not               however  required  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."               "Note:-The appointing authorities are empower-               ed  to reduce or waive, at  their  discretion,               the stipulated period of notice to be given by               an  employee, but the reason justifying  their                             action should be recorded.               This power cannot be re-delegated." Then  follow the respective periods for which notice has  to be given.  It is unnecessary to refer to these periods. We  may  incidentally cite Rule 148(4) as well  which  reads thus:- 693               "In  lieu  of the notice  prescribed  in  this               rule,  it shall be permissible on the part  of               the  Railway Administration to  terminate  the               service of a railway servant by paying him the               pay for the period of notice." It  is  thus clear that R. 148(3) empowers  the  appropriate authority to terminate the services of other  nonpensionable railway servants after giving them notice for the  specified period,  or paying them their salary for the said period  in lieu of notice under R. 148(4). The  non-pensionable  services  were brought to  an  end  in November,  1957  and  an  option  was  given  to  the   non- pensionable servants either to opt for pension. able service

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or  to  continue on their previous terms and  conditions  of service.   Thereafter,  Rule 149 was framed in place  of  R. 148.  Rule 149(1) & (2) like Rule 148(1) & (2) deal with the temporary  railway  servants and  apprentices  respectively. Rule  149(3)  deals with other railway  servants;  it  reads thus:-               "Other railway servants:-The services of other               railway   servants   shall   be   liable    to               termination  on notice on either side for  the               periods  shown  below.   Such  notice  is  not               however,  required  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" The  Rule  then specifies the different  periods  for  which notice has to be given in regard to the different categories of servants, It is unnecessary to refer to these periods. Then follow sub-rule (4).  The same may be conveniently  set out at this place:               "(4) In lieu of the notice prescribed in  this               rule,  it shall be permissible on the part  of               the  Railway Administration to  terminate  the               service of a railway servant by paying him the               pay for the period of notice.               694.               Note:-The appointing authorites are  empowered               to  reduce or waive, at their discretion,  the               stipulated period of notice to be given by  an               employee,  but  the  reason  justifying  their               action should be recorded.               This power cannot be re-delegated." Just  as  under’  Rule 148(3) the services  of  the  railway employees  to  which it applied could  be  terminated  after giving  them  notice for the period specified, so  under  R. 149(3)  termination of services of the  employees  concerned can  be brought about by serving them with a notice for  the requisite  period, or paying them their salary for the  said period  in  lieu  of notice under R.  149(4).   Rule  149(3) applies  to all servants other than temporary  servants  and apprentices.   The distinction between pensionable and  non- pensionable servants no longer prevails.  The question which we have to consider in the   present appeals is whether  the termination,of services of a permanent railway servant under Rule 148(3) or Rule 149(3)amounts to- his removal under Art. 311(2) of the Constitution.If it does,the impugned Rules are invalid; if it does not, the said Rules are valid. That takes us to the question as to the true scope and effect of  the provisions contained in Art.311(2),and the  decision of this question naturally involves the construction of Art. 311(2)  read  in  the light of Articles  309  and  310.   In considering  this  point,  if may be useful  to  refer  very briefly  to  the  genesis  of  these  provisions  and  their legislative  background.   In this connection, it  would  be enough  for our purpose if we begin with the  Government  of India Act, 1833.  Section 74 of the said Act made the tenure of all Services under the East India Company subject to  His Majesty’s  pleasure.  These servants were also made  subject to  the  pleasure of the Court of Directors with  a  proviso which  excepted  from  the  said rule  those  who  had  been appointed directly by His Majesty.  In due course, when  the Crown  took  over  the government of  this  country  by  the Government  of India Act, 1858, section 3 conferred  on  the

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Secretary of 695 State all powers which has till then vested in the Court  of Directors,  while the powers in relation to the servants  of the Company which had till then vested in the Director were, by s. 37, delegated to the Secretary of State. This  position  continued until we reach the  Government  of India  Act,  1915.   This  Act  repealed  all  the   earlier Parliamentary  legislation  and  was  in  the  nature  of  a consolidating  Act.   There  was, however  a  saving  clause contained in section 130 of the said Act which preserved the earlier  tenures  of servants and continued  the  rules  and regulations  applicable  to them.  Section 96B of  this  Act which  was  enacted in 1919 brought about a  change  in  the constitutional  position  of the  civil  servants.’  Section 96B(1)   in  substance,  provided  that  "subject   to   the provisions of this Act and the rules made thereunder,  every person  in  the civil service of the Crown  in  India  holds office  during His Majesty’s pleasures and it added that  no person  in  that service may be dismissed by  any  authority subordinate  to  that by which he was  appointed.   It  also empowered the Secretary of State in Council to reinstate any person in that service who had been dismissed, except so far as the Secretary of State in Council may, by rules,  provide to  the  contrary.  Section 96B(2) conferred  power  on  the Secretary  of State in Council to make rules for  regulating the  classification  of  the Civil Services  in  India,  the method  of recruitment, the conditions of service,  pay  and allowances and discipline and conduct while sub section  (4) declared that all service rules then in force had been  duly made and confirmed the same. In 1935, the Government of India Act 1935 was passed and  s. 96B( 1) was reproduced in subsection (1) and (2) of  section 240,  and a new sub-section was added as ss. (3).   By  this new  sub-section, protection was given to the civil  servant by  providing that he shall not be dismissed or  reduced  in rank  until he had be en given a reasonable  opportunity  of showing  cause  against the action proposed to be  taken  in regard  to him.  The definition contained in s. 277  of  the said 596 act  shows that the expression "dismissal" included  removal from service. That continued to be the position until the Constitution was adopted in 1950.  The Constitution has dealt with this topic in Articles 309, 310 and 311.  Art.310 deals with the tenure of  office  of  persons serving the Union or  a  State,  and 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 a State.   The doctrine of pleasure is thus embodied by Art. 310(1).   Art. 310(2) deals with cases of persons appointed under contract, and it provides that if the President or the Governor  deems it  necessary  in order to secure the services of  a  person having  special qualifications, he may appoint him  under  a special  contract and the said 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 significant that  Art. 310(1) begins with a clause "except as expressly provided by this Constitution"’.  In other words,if there are any  other provisions  in the Constitution which impinge upon  it,  the provisions of Art. 310(1) must be read subject to them.  The exceptions   thus   contemplated  may  be   illustrated   by

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,reference  to  Articles  124, 148, 218  and  324.   Another exception  is  also provided by Art. 31 1. In  other  words, Art.  311 has to be read as a proviso to Art. 310,  and  so, there can be no doubt that the pleasure contemplated by Art. 310(1)   must  be  exercised  subject  to  the   limitations prescribed by Art. 31 1. Art.  309  provides that subject to the  provisions  of  the constitution,  Acts  of  the  appropriate  Legislative   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. This clearly means that the appropriate Legislature may pass Acts  in respect of the terms and conditions of  service  of persons appointed to public 697 services  and  posts,  but  that  must  be  subject  to  the provisions  of the constitution which inevitably  brings  in Art. 310(1).  The proviso to Art. 309 makes it clear that it would  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 affairs  of  the State,  to  make  rules  regulating  the  recruitment,   and prescribing   the   conditions   of   service   of   persons respectively appointed to services and posts under the Union or  the State The pleasure of the President or the  Governor mentioned  in  Art.  310(1) can thus be  exercised  by  such person  as  the President or the Governor  may  respectively direct  in that behalf, and the pleasure thus exercised  has to  be exercised in accordance with the rules made  in  that behalf.  These rules, and indeed the exercise of the  powers conferred  on the delegate must be subject to Art. 310,  and so  Art.  309 cannot impair or affect the  pleasure  of  the President or the Governor therein specified.  There is  thus no  doubt that Art. 309 has to be read subject  to  Articles 310  and  31 1, and Art. 310 has to be read subject  to  Art 311.   It  is significant that the provisions  contained  in Art.  311  are  not subject to any other  provision  of  the Constitution.   Within  the field covered by them  they  are absolute  and  paramount.  What then is the  effect  of  the provisions  contained  in Art. 311(2)?   Art.  311(2)  reads thus:-               "No  such  person as aforesaid shall  be  dis-               missed or removed or reduced in rank until  he               has  been  given a reasonable  opportunity  of                             showing cause against the action propo sed to be               taken in regard to him." We  are not concerned with the cases covered by the  proviso to this article in the present appeals.  It may be taken  to be  settled by the decisions of this Court that  since  Art. 311  makes  no distinction between permanent  and  temporary posts,  its  protection  must  be  held  to  extend  to  all government servants holding 698 permanent or temporary posts or officiating in any of  them. The  protection  afforded by Art. 311(2) is limited  to  the imposition  of  three major penalties  contemplated  by  the service  Rules,  viz., dismissal, removal  or  reduction  in rank.   It  is true that the consequences of  dismissal  are more serious than those of removal and in that sense,  there is  a  technical  distinction between the two;  but  in  the context, dismissal, removal and reduction in rank which  are specified by Art. 311 (2) represent actions taken by way  of

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penalty.   In regard to temporary servants, or  servants  on probation,  every  case of termination of  service  may  not amount to removal.  In cases falling under these categories, the  terms of contract or service rules may provide for  the termination of the services on notice of a specified period, or  on  payment  of salary for the said period,  and  if  in exercise  of the power thus conferred on the  employer,  the services   of  a  temporary  or  probationary  servant   are terminated,  it may not necessarily amount to  removal.   In every such case, courts examine the substance of the matter, and  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, Art. 311(2)  may  not  be applicable to such a case.  If, however, the termination  of a  temporary  servant’s services in substance  represents  a penalty imposed on him or punitive action taken against him, then  such  termination  would amount to  removal  and  Art. 311(2) would be attracted.  Similar would be the position in regard  to the reduction in rank of an officiating  servant. This aspect of the matter has been considered by this  Court in several recent decisions, vide Jagdish Mitter v. Union of India(1) State of Bihar v. Gopi Kishore’ Prasad(2) State  of Orissa & Anr. v. Ram Narayan Das(3) S. Sukhbans Singh v. The State of Punjab(4) and Madan Gopal v. The State of Punjab  & Qrs. (5) (1)  A. 1. R. 1964 S. C. 449. (3)  [1961] 1 S. C.R. 606. (2)  [1961] 2 S. C. R. 590. (4)  [1963] 1 S. C. R. 416. (5)  [1963] 3 S. C. R. 716. 699 This branch of the law must, therefore, be taken to be well- settled. In regard to servants holding substantively a permanent post who  may  conveniently be describe  hereafter  as  permanent servants,  it  is  similarly wellsettled that  if  they  are compulsorily retired under the relevant service rules,  such compulsory retirement does not amount to removal under  Art. 311 (2).  Similarly, there can be no doubt that the  retire- ment  of  a permanent servant on his attaining  the  age  of superannuation  does  not amount to his removal  within  the meaning of Art. 311(2). The  question which arises for our decision in  the  present appeals  is: if the service of a permanent civil servant  is terminated  otherwise  than  by operation  of  the  rule  of superannuation,  or the rule of compulsory  retirement  does such termination amount to removal under Art. 311(2) or  not ?  It is on the aspect of the question that the  controversy between the parties arises before us. Before  dealing with this problem, it is necessary to  refer to   the  relevant.   Railway  Rules   themselves   Speaking historically, it appears that even while the affairs of  the country were in charge of the East India Company, there used to  be  some  regulations which were  substantially  in  the nature  of  administrative  instructions in  regard  to  the conditions  of  service of the Company’s  employees.   These regulations were continued by s. 130(c) of the Government of India  Act, 1915 which provided, inter alia that the  repeal shall  not  affect  the  tenure  of  office,  conditions  of service,  terms of remuneration or right to pension  of  any officer  appointed  before  the commencement  of  this  Act. Section  96B(2) which was inserted in the said Act in  1919, however,  provided  that  the  said  regulations  could   be modified  or superseded by rules framed by the Secretary  of State.  In due course, the Secretary of State framed certain

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rules The first batch of rules was framed in December  1920. They applied to all officers in the All India Provincial  as well as Subordinate Services and governed 700 even  officers holding special posts.  The Local  Government had a limited power in respect of officers in the  All-India Services under their employment and this power was  confined to  imposing  on  them punishments  of  censure,  reduction, withholding  of promotion and suspension (vide Rule 10);  in the case of Provincial Services, however, the powers of  the Local Government were plenary They could not only impose the penalties to which we have just referred, but also remove or dismiss  them  (vide  Rule 13).  It  appears  that  Rule  14 prescribed  the  procedure  which  had  to  be  followed  in imposing the penalty of dismissal, removal or reduction; and so, it may be said that for the first time these three major punishments  were collated together and a special  procedure prescribed  in that behalf.  No definition of  removal  was, however, prescribed.  Incidentally, we may refer to Rule  XX which is included in the group of rules relating to appeals. Under  this rule, an appeal would not lie against;  (1)  the discharge of a person appointed on probation before the  end of  his  probation, and (2) the dismissal and removal  of  a person  appointed  by  an  authority  in  India  to  hold  a temporary appointment.  It would be permissible to point out that  this provision would show that the termination of  the services  of  a person permanently employed would  not  have fallen within the ambit of this rule. The Rules thus framed in 1920 were amended from time to time and   were  re-issued  in  June,  1924.   It  appears   that subsequent  to  1924,  fresh  rules  were  made  under   the Governors  Provinces  Civil Services  (Control  and  Appeal) Rules  and Governors Provinces Civil  Services  (Delegation) Rules  of  1926 which were published in March,  1926.   Then followed the Rules framed by the Secretary of State in 1930. These Rules were in force when the Government of India  Act, 1935  was  enacted, and they continue in force even  now  by reason  of  Article 313.  We ought to add that  these  Rules superseded   all  the  earlier  rules  and   constitute   an exhaustive code as regards disciplinary matters.  Rule  3(b) of these rules excluded the 701 Railway  Servants  from the application of said  rules,  and that  furnishes  the  historical  background  why   separate Fundamental   Rules   for  Railway  corresponding   to   the Fundamental  Rules  in  other public services,  came  to  be framed. Before  we  proceed  to the relevant  Railway  Rule  we  may incidentally  mention  Rule 49 of the Rules  framed  by  the Secretary  of State in 1930.  This provides  that  penalties may,  for  good  and sufficient reason  and  as  hereinafter provided, be imposed upon members of the services  comprised in  any  of  the clauses (1) to (5) specified  in  Rule  14. These  penalties.  number seven in all.   Amongst  them  are mentioned reduction to a lower post, dismissal and  removal. Then follows an explanation which is useful for our purpose. Before quoting that explanation it may be. pointed out  that the  said explanation which was originally introduced  under Rule 49, was subsequently amended once in 1948, then in 1950 lastly  in  1955  when  explanation No.  2  was  added  Thus amended, the two explanations read as follows:               "Explanation 1 The termination of employment               (a)   of  a  person  appointed  on   probation               during  or  at  the  end  of  the  period   of               probation, in accordance with the terms of the

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             appointment   and  the  rules  governing   the               probationary service; or               (b)   of   a  temporary   Government   servant               appointed  otherwise than under  contract,  in               accordance  with rule 5 of the  Central  Civil               Services (Temporary Service) Rules, 1949; or               (c)   of  a person engaged under  a  contract,               does not amount to removal or dismissal within               the meaning of this rule or of rule 55.               Explanation II:-Stopping a Government  Servant               at an efficiency bar in the time scale of  his               pay  on the ground of his unfitness  to  cross               the  bar  does not amount  to  withholding  of               increments or promotions within the meaning of               this rule." 702 Looking  at  clauses (a), (b) and (c) of Explanation  1,  it would  be  apparent that these clauses  deal  with   persons appointed on probation, or appointed as temporary  servants, or  engaged  on  a  contract, and the  effect  of  the  said explanation is that the termination of the services of  such persons  does not amount to removal or dismissal within  the meaning  of Rule 49 or Rule 55.  In other words, R. 49  read along  with explanation 1, would,prima facie,  inferentially support  the contention 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. Let us then consider the relevant Railway Fundamental  Rules which  have  a  bearing  on the  point  with  which  we  are concerned.   Paragraph  2003  of the  Code,  Vol.  11  which corresponds  to  Fundamental Rule  9  contains  definitions. Fundamental  Rule 9(14) defines a lien as meaning the  title of   a  Railway  servant  to  hold   substantively,   either immediately or on the termination of a period or periods  of absence, a permanent post, including a tenure post, to which he has been appointed substantively.  An officiating servant is defined by F.R. 9(19) as one who performs the duties of a post  on  which  another  person holds a  lien,  or  when  a competent  authority appoints him to officiate in  a  vacant post on which no other railway servant holds a lien.   There is  a proviso to this definition which is not  relevant  for our purpose.  That takes us to the definition of a permanent post which under F.R. 9(22) means a post carrying a definite rate of pay sanctioned without limit of time.  A,  temporary post,  on  the other hand, means under F.R. 9  (29)  a  post carrying  a  definite rate of pay sanctioned for  a  limited time, and a tenure post means under F. R. 9 (30) a permanent post  which an individual railway servant may not  hold  for more  than  a limited period.  It is thus clear  that  as  a result of the relevant definitions, a permanent post carries a definite ate of pay without a limit of time and a  servant who substantively holds a permanent post has 703 a  title  to  hold the post to  which  he  is  substantively appointed,  and  that,  in terms,  means  that  a  permanent servant  has  a right to hold the post until, of  course  he reaches   the  age  of  superannuation,  or  until   he   is compulsorily retired under the relevant rule. It is in the light of this position that we must now proceed to examine the question as to whether the termination of the permanent servant’s services either under Rule 148(3) or  R. 149(3)  amounts to his removal or not.  On this  point,  two extreme  contentions  have  been raised  before  us  by  the parties  The learned Addl.  Solicitor-General contends  that

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in  dealing  with the present controversy, we must  bear  in mind  the doctrine of pleasure which has been  enshrined  in Art.  310(1).  He argues that every civil servant holds  his office  during the pleasure the President or  the  Governor. It  is true that in the present cases, we are  dealing  with rules  framed  under  the proviso to Art. 309  and  in  that sense,  the question of pleasure on which so much stress  is laid  by  the  learned  Addl.   Solicitor-General  may   not directly  arise;  but  it must be conceded  that  the  point raised for our decision may have some impact on the doctrine of  pleasure, and so it needs to be examined.  The  argument is that all civil service is strictly speaking precarious in character.  There is no guarantee of any security of tenure, because the pleasure of the President or the Governor can be exercised at any time against the civil servant.  It is true that  this  pleasure would not  be  exercised  capriciously, unjustly  or unfairly, but the existence of the doctrine  of pleasure inevitably imposes a stamp of precarious  character on  the  tenure enjoyed by the civil servant, and so  it  is urged whether Rule 148 or R. 149 is made or not, it would be open  to  the  President or the Governor  to  terminate  the services  of  any civil servant to whose  case  Art.  110(1) applies. The learned Addl.  Solicitor-General has also impressed upon us  the  necessity to construe Art. 310(1) and Art.  311  in such a manner that the pleasure contemplated  by Art. 310(1) does not become illusory or  is not  completely obliterated.  He, therefore,  suggests  that Art.  311(2)  which  is in the nature of  a  proviso  or  an exception  to Art. 310(1) must be strictly construed and  in all  cases falling outside the scope of the said  provision, the  pleasure  of the President or the      Governor must be allowed to rule supreme. On the other hand, it has been urged by the learned  counsel appearing for the railway servants concerned before us  that the pleasure of the President is controlled by Art. 311  and if  the argument of the learned Addl.  Solicitor-General  is accepted  and full scope given to the exercise of  the  said pleasure, Art. 311 itself would become otiose.  It is  urged that the employment in civil service can be terminated  only after  complying with Art. 311 and any rule  which  violates the guarantee provided by the said Article would be invalid. In  fact,  the argument on the other side is that  the  word "removal"  should receive a much wider denotation  than  has been accepted by this Court in its decisions bearing on  the point,  and that all terminations of services in respect  of all  categories  of  public  servants  should  be  held   to constitute  removal within Art. 311(2).  We are inclined  to hold  that  the two extreme contentions raised by  both  the parties  must  be  rejected.  There is  no  doubt  that  the pleasure  of  the  President  on  which  the  learned  Addl. Solicitor  General so strongly relies has lost some  of  its majesty  and power, because it is clearly controlled by  the provisions  of Art. 31 1, and so, the field that is  covered by Art. 311 on a fair and reasonable construction of the re- levant  words used in that article, would be  excluded  from the  operation  of the absolute doctrine of  pleasure.   The pleasure  of the President would still be there, but it  has to be exercised in accordance with the requirements of  Art. 311. Besides,  as  this Court has held in the State of  Bihar  v. Abdul Majid(1), the rule of English Law pithily expressed in the latin phrase "duranto bene placito" ("during  pleasure") has not been fully adopted either (1)  [1954] S.C.R. 786, 799.

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705 by  section 240 of the Government of India Act, 1935, or  by Art.  3 1 0(1).  To the extent to which that rule  has  been modified  by  the  relevant provisions of:  S.  240  of  the Government  of India Act, 1935, or Art. 311  the  Government servants are entitled to relief like any other person  under the  ordinary law and that relief must be regulated  by  the Code of Civil Procedure.  It is mainly on the basis of  this principle  that  this Court refused to  apply  the  doctrine against  abdul  Majid that a civil servant  cannot  maintain suit  against a State or against the Crown for the  recovery of  arrears  of  salary  due  to  him.   Thus,  the  extreme contention  based on the doctrine of pleasure  enshrined  in Art. 310(1) cannot be sustained.  Similarly, we do not think it  would be possible to accept the argument that  the  word "removal"   in  Art.  311(2)  should  receive   the   widest interpretation.  Apart from the fact that the said provision is  in  the nature of a proviso to Art. 3 1 0(1)  and  must, therefore,  be strictly construed, the point raised  by  the contention  is concluded by the decisions of this Court  and we  propose  to deal with the present appeals on  the  basis that  the  word  "   removal"  like  the  two  other   words "dismissal"  and  "reduction in rank" used  in  Art.  311(2) refer  to cases of major penalties which were  specified  by the relevant service rules.  Therefore, the true position is that  Articles 310 and 311 must no doubt be  read  together, but  once  the  true  scope  and  effect  of  Art.  311   is determined,  the  scope and effect of Art.  310(1)  must  be limited  in the sense that in regard to cases falling  under Art.  311(2) the pleasure mentioned in Art. 310(1)  must  be exercised in accordance with the requirements of Art. 311. It  is  then urged by the learned Addl.   Solicitor  General that  Art.  310  does not permit of the  concept  of  tenure during  good behaviour.  According to him, in spite  of  the rule of superannuation, the services of a civil servant  can be  terminated by the President exercising his  pleasure  at any  time.   The rule of superannuation on  this  contention merely  gives an indication to the civil servant as  to  the length of time 1/SCI/64-45 706 he  may  expect  to  serve, but it gives  him  no  right  to continue during the whole of the said period.  In fact,  the learned  Addl.  Solicitor-General did not disguise the  ’act that  according  to his argument Whether or not  a  rule  of superannuation  is framed and whether or not Rule 148 or  R. 149  is issued, the President’s pleasure can,  be  exercised independently  of  these Rules and the action taken  by  the President in exercise of his pleasure cannot be  "questioned under Art. 311(2). Alternatively,_ he contends that if Art. 311(2) is read in a very general and wide sense, even the rule as to the age  of superannuation  may be questioned as being invalid,  because it  does put an end to the service of a civil  servant.   We are  not impressed by this argument.  We will no doubt  have to decide what cases of termination of services of permanent civil servants amount to removal; but once that question  is determined,  wherever  it is shown that  a  permanent  civil servant is removed from his service, Art. 311(2) will  apply and  Art.  310(1) cannot be invoked independently  with  the object of justifying the contravention of the provisions  of Art. 311(2). In regard to the age of superannuation, it may be said prima facie  that rules of superannuation which are prescribed  in respect of public services in all modem States are based  on

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considerations  of life expectation, mental capacity of  the civil  servants  having regard to  the  climatic  conditions under  which they work, and the nature of the work they  do. They  are not fixed on any ad hoc basis and do  not  involve the exercise of any discretion.  They apply uniformly to all public  servants  falling under the category in  respect  of which  they  are  framed.   Therefore,  no  analogy  can  be suggested  between  the  rule  of  superannuation  and-.Rule 148(3) or Rule 149(3).  Besides., nobody has questioned  the validity of the rule of superannuation, and so, it would  be fruitless  and idle to consider whether such a rule  can  be challenged at all. Reverting then to the nature of the right which a  permanent servant  has under the relevant Railway Rules, what  is  the true position?  A person Who 707 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.  In other words,  termination  of  the services of a permanent servant otherwise than on the ground of  superannuation  or compulsory retirement,  must  per  se amount to his removal, and so, if by R. 148(3) or IC. 149(3) such  a  termination  is brought  about,  the  Rule  clearly contravenes Art. 311(2) and must be held to be invalid.   It is common ground that neither of the two Rules  contemplates an  enquiry  and  in none of the cases  before  us  has  the procedure  prescribed  by  Art. 311(2)  been  followed.   We appreciate   the  argument  urged  by  the   learned   Addl. Solicitor-General  about the pleasure of the  President  and its significance; but since the pleasure has to be exercised subject  to the provisions of Art. 31 1, there would  be  no escape from the conclusion that in respect of cases  falling under  Art.  311(2), the procedure prescribed  by  the  said Article  must be complied with and the exercise of  pleasure regulated accordingly. In this connection, it is necessary to emphasise   that  the rule-making authority contemplated by Art. 309    cannot  be validly  exercised  so as to curtail or  affect  the  rights guaranteed  to  public  servants under  Art.  311(1).   Art. 311(1)  is intended to afford a sense of security to  public servants who are substantively appointed to a permanent post and one of the principal benefits which they are entitled to expect  is  the benefit of pension  after  rendering  public service  for the period prescribed by the Rules.  It  would, we  think,  not be legitimate to contend that the  right  to earn a pension to which a servant substantively appointed to a  permanent  post  is entitled can be  curtailed  by  Rules framed  under Art. 309 so as to make the said  right  either ineffective or illusory.  Once the scope of Art. 311(1)  and (2) is duly determined, it must be held that no Rule 708 framed under Art. 309 can trespass on the rights  guaranteed by Art. 311.  This position is of basic importance and  must be  borne  in mind in dealing with the  controversy  in  the present appeals. At  this stage, we ought to add that in a modern  democratic State   the  efficiency  and  incorruptibility   of   public administration is of such importance that it is essential to afford   to  civil  servants  adequate  protection   against capricious  action  from  their superior  authority.   If  a

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permanent  civil servant is guilty of misconduct, he  should no  doubt be proceeded against promptly under  the  relevant disciplinary  rules,  subject, of course, to  the  safeguard prescribed  by  Art.  311(2);  but  in  regard  to   honest, straightforward  and efficient permanent civil servants,  it is  of utmost importance even from the point of view of  the State that they should enjoy a sense of security which alone can  make  them  independent and truly  efficient.   In  our opinion,  the  sword of Damocles hanging over the  heads  of permanent  railway servants in the form of R. 148(3)  or  R. 149(3) would inevitably create a sense of insecurity in  the minds   of  such  servants  and  would  invest   appropriate authorities  with very wide powers which may conceivably  be abused. In  this  connection,  no distinction can  be  made  between pensionable  and non-pensionable service.  Even if a  person is holding a post which does not carry any pension, he has a right  to  continue in service until he reaches the  age  of superannuation and the said right is a very valuable  right. That is why the invasion of this right must inevitably  mean that the termination of his service is, in substance, and in law,  removal from service.  It appears that after Rule  149 was  brought into force in 1957, another provision has  been made  by  Rule 321 which seems to contemplate the  award  of some  kind  of pension to the employees whose  services  are terminated  under Rule 149(3).  But it is  significant  that the  application  of R. 149(3) does not require,  as  normal rules of compulsory retirement do "that the power  conferred by the said Rule can be exercised in respect of servants who have 709 put  in a prescribed minimum period of service.   Therefore, the  fact  that  some  kind  of  proportionate  pension   is awardable to railway servants whose services are  terminated under  R. 149(3) would not assimilate the cases  dealt  with under the’ said Rule to cases of compulsory retirement.   As we Will presently point out, cases of compulsory  retirement which  have  been considered by this Court  were  all  cases where  the  rule  as  to  compulsory  retirement  came  into operation  before the age of superannuation was reached  and after a Prescribed minimum period of service had been put in by the servant. It is true that the termination of service authorised by  R. 148(3)  or R. 149(3) contemplates the right to terminate  on either   side.   For  all  practical  purposes,  the   right conferred  on  the servant to terminate his  services  after giving due notice to the employer does not mean much in  the present position of unemployment in this country; but  apart from  it,  the  fact  that  a  servant  has  been  given   a corresponding  right cannot detract from the  position  that the  right which is conferred on the railway authorities  by the impugned Rules is inconsistent with Art. 311(2), and so, it  ha to be struck down in spite of the fact that a  simila right is given to the servant concerned. It  has, however, been urged that the railway  servants  who entered  service  with  the full knowledge  of  these  Rules cannot be allowed to complain that the Rules contravene Art. 311 and are, therefore invalid.  It appears that under  Rule 144  (which was originally Rule 143), it was  obligatory  on railway  servants to execute a contract in terms of the  re- levant Railway Rules.  That is how the argument based on the contract  and its binding character arise If a person  while entering service executes a contract containing the relevant Rule  in that behalf with open eyes, how can he be heard  to challenge  the  validity  of  the said  Rule,  or  the  said

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contract?   In our opinion this approach may be relevant  in dealing  with purely commercial cases governed by  rules  of contract  but it is wholly inappropriate in dealing  with  a case 710 where  the  contract  or the Rule is alleged  to  violate  a constitutional guarantee afforded by Art. 311(2); land  even as  to commercial transactions, it is wellknown that if  the contract is void, as for instance, under s. 23 of the Indian Contract  Act,  the plea that it was executed by  the  party would be of no avail.  In any case, we do not think that the argument  of  contract and its binding  character  can  have validity   in   dealing   with  the   question   about   the constitutionality of the impugned Rules. Let  us  then  test  this  argument  by  reference  to   the provisions  of  Art. 311(1).  Art. 311(1) provides  that  no person  to whom the said article applies shall be  dismissed or  removed by an authority subordinate to that by which  he was  appointed.   Can  it  be  suggested  that  the  Railway Administration can enter into a contract with its  employees by which authority to dismiss or remove the employees can be delegated  to persons other than those contemplated by  Art. 311  (1)?  The answer to this question is obviously  in  the negative,  and the same answer must be given to the  conten- tion  that  as a result of the contract which  embodies  the impugned  Rules,  the termination of the  railway  servant’s services  would not attract the provisions of  Art.  311(2), though,  in  law,  it  amounts  to  removal.   If  the  said termination  does  not amount to removal, then,  of  course, Art.  311(2) would be inapplicable and the challenge to  the validity  of  the  impugned Rules would  fail;  but  if  the termination in question amounts to a removal, the  challenge to   the  validity  of  the  impugned  Rules  must   succeed notwithstanding the fact that the Rule has been included  in a contract signed by the railway servant. There is one more point which still remains to be considered and  that is the point of construction.  The  learned  Add1. Solicitor-General  argued  that in construing  the  impugned Rule  148(3)  as well as R. 149(3), we ought  to  take  into account the fact that the Rule as amended has been so framed as  to  avoid  conflict  with,  or  non-compliance  of,  the provisions  of  Art.  311(2), and so, he  suggests  that  we should 711 adopt  that  interpretation  of  the  Rule  which  would  be consistent  with  Art.  311(2).  The argument  is  that  the termination of services permissible under the impugned Rules really proceeds on administrative grounds or  considerations of  exigencies of service.  If, for instance, the post  held by  a  permanent servant is abolished, or the whole  of  the cadre  to which the post belonged is brought to an  end  and the   railway   servant’s   services   are   terminated   in consequence,  that cannot amount to his removal because  the termination  of  his  services is not based  on  any  consi- deration  personal  to  the servant.  In  support’  of  this argument, the Addl.  Solicitor-General wants us to test  the provision  contained in the latter portion of  the  impugned Rules.   We  are not impressed by this argument.   What  the latter  portion  of the impugned Rules provides is  that  in case a railway servant is dealt with under that portion,  no notice  need be served on him.  The first part of the  Rules can  reason ably and legitimately take in all cases and  may be  used even in respect of cases falling under  the  latter category,  provided,  of course, notice  for  the  specified period  or  salary  in lieu of such notice is  give  to  the

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railway  servant.   There  is  no  doubt  that  on  a   fair construction,  the  impugned  Rules  authorise  the  Railway Administration   to  terminate  the  services  of  all   the permanent servants to, whom the Rules apply merely on giving notice for the specified period, or on payment of salary  in lieu thereof, and that clearly amounts to the removal of the servant  in  question, we are satisfied  that  the  impugned Rules  are invalid in as much as they are inconsistent  with the provision contained in Art. 311(2).  The termination  of the permanent servants" tenure Which is authorised the  said Rules  is  no  more and no less  than,  their  removal  from service, and so, Art. 311(2) must come into play in  respect of  such  cases,  ’That being so. the Rule  which  does  not require  compliance  with the procedure prescribed  by  Art. 311(2) must be struck down as invalid. It  is now necessary to examine some of the cases  on  which the learned Addl.  Solicitor-General has 712 relied.   In  fact, as we have already indicated,  his  main argument  was that some of the observations made in some  of the  decisions to which we will presently refer support  his contention  and  logically lead to the conclusion  that  the impugned Rules are valid.  That naturally makes it necessary for us to examine the said cases very carefully.  In  Satish Chandra  Anand  v.  The Union of India(1),  this  Court  was dealing  with the case of a person who had been employed  by the  Government  of  India on a five-year  contract  in  the Resettlement  and Employment Directorate of the Ministry  of Labour.   When his contract was due to expire, a  new  offer was  made  to  him to continue him in service  in  his  post temporarily   for  the  period  of  the   Resettlement   and Employment  Organization on the condition that he  would  be governed  by the Central Civil Services (Temporary  Service) Rules,  1949.  The relevant rule in that  behalf  authorised the  termination  of  the contract on  either  side  by  one month’s notice.  Subsequently, his services were  terminated after  giving  him one month’s notice.   He  challenged  the validity  of  the said order, but did not  succeed  for  the reason  that neither Art. 14 nor Art. 16 on which he  relied really applied.  This Court held that it is competent to the State  to  enter  into  contracts  of  temporary  employment subject to the term that the contract would be terminated on one month’s notice on either side.  Such a contract was  not inconsistent with Art. 311(2).  This case, therefore, is  of no assistance in the present appeals. In  Gopal  Krishna  Potnay v. Union of India &  Anr.  (2)  a permanent  railway employee who was discharged from  service after  one  month  notice brought  a  suit  challenging  the validity  of the order terminating his services.  The  point about  the validity of the Rule was not agitated before  the Court.  Questions which were raised for the decision of  the Court  were, inter alia, whether the agreement  in  question lad been executed by the servant and whether the (1) [1953] S.C.R. 655. (2) A.I.R. 1954 S.C. 632. 713 termination of his services amounted to a discharge or  not. In  that  connection, reference was made to Rules  1504  and 1505 and it was held that the conduct of the parties  showed that the termination of the servant’s services was not  more than a discharge in terms of the agreement.  This case again is of no assistance. That  takes us to the decision in the case of Shyam  Lal  v. The  State  of U.P. and the Union of  India(1)  Shyam  Lal’s services  were  terminated  under Art. 465-A  of  the  Civil

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Service Regulations and Note I appended thereto.  Shyam  Lal alleged     that  his  compulsory  retirement  offended   the provisions  of  Art. 311(2) on the  ground  that  compulsory retirement  was  in substance removal  from  service.   This Court  considered the scheme of the relevant Rule  and  held that compulsory retirement did not amount to removal  within the meaning of Art. 311(2).  In dealing with this  question, this Court observed that removal was almost synonymous  with dismissal and that in the case of removal as in the case  of dismissal,  some  ground personal to the servant  which  was blameworthy  was involved.  There was a stigma  attached  to the  servant  who  was removed and it  involved  a  loss  of benefit already earned by him.  It is in the light of  these tests  that this Court held that compulsory  retirement  did not amount to removal.  It is true that in dealing with  the argument about the loss of benefit, this Court observed that a  distinction  must  be made between the  loss  of  benefit already earned and the loss of prospect of earning something more, and it proceeded to add that in the first case, it  is a  present and certain loss and is certainly  a  punishment, but  the loss of future prospect is too uncertain,  for  the officer may die of be otherwise incapacitated from serving a day  long and cannot, therefore, be regarded in the  eye  of law  as a punishment.  It appears that in dealing  with  the point,  the attention of the Court was drawn to Rule  49  of the  Civil  Services (Classification,  Control  and  Appeal) Rules, and presumably the explanation  (1) [1955] 1 S.C.R 26. 713 termination of his services amounted to a discharge or  not. In  that  connection, reference was made to Rules  1504  and 1505 and it was held that the conduct of the parties  showed that the termination of the servant’s services was not  more than a discharge in terms of the agreement.  This case again is of no assistance. That  takes us to the decision in the case of Shyam  Lal  v. The  State  of U.P. and the Union of  India(-)  Shyam  Lal’s services  were  terminated  under Art. 465-A  of  the  Civil Service Regulations and Note I appended thereto.  Shyam  Lal alleged   that  his  compulsory  retirement   offended   the provisions  of  Art. 311(2) on the  ground  that  compulsory retirement  was  in substance removal  from  service.   This Court  considered the scheme of the relevant Rule  and  held that compulsory retirement did not amount to removal  within the meaning of Art. 311(2).  In dealing with this  question, this Court observed that removal was almost synonymous  with dismissal and that in the case of removal as in the case  of dismissal,  some  ground personal to the servant  which  was blameworthy  was involved.  There was a stigma  attached  to the  servant  who  was removed and it  involved  a  loss  of benefit already earned by him.  It is in the light of  these tests that this Court held that compulsory retirement did no amount  to  removal.   It is true that in  dealing  with  th argument about the loss of benefit, this Court observe  that a  distinction  must  be made between the  loss  of  benefit already earned and the loss of prospect of earning something more, and it preceded to add that in the first case, it is a present and certain loss and is certainly a punishment,  but the  loss  of  future prospect is  too  uncertain,  for  the officer may die or be otherwise incapacitated from serving a day longer and cannot, therefore, be regarded in the eye  of the  law as a punishment.  It appears that in  dealing  with the  point, the attention of the Court was drawn to Rule  49 of  the Civil Services (Classification, Control and  Appeal) Rules, and presumably the explanation

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(1)  [1955] 1 S.C.R. 26. 714 to  the  said Rule to which we have  already  referred,  was taken  into account in rejecting the argument a that a  loss of future service cannot be said to be a relevant factor  in determining the question as to whether compulsory retirement is  removal  or not.  The judgment does not  show  that  the invasion  of  the right which a permanent  servant  has,  to remain   in   service   until  he   reaches   the   age   of superannuation, was pressed before the Court, and  naturally the  same  has not been examined.  Confining itself  to  the special features of compulsory retirement which was effected under Art. 465-A and Note I appended thereto, the Court came to  the  conclusion  that  compulsory  retirement  was   not removal, We may add that subsequent decisions show that  the same view has been taken in respect of compulsory retirement throughout and so, that branch of the law must be held to be concluded  by  the  series of decisions to  which  we  shall presently  refer.  We would, however, like to make it  clear that  the  observation  made  in  the  judgment  that  every termination  of  service  does not amount  to  dismissal  or removal  should, in the context, be confined to the case  of compulsory  retirement and should not be read as a  decision of the question with which we are directly concerned in  the present  appeals.   That problem did not  arise  before  the Court   in  that  case,  was  not  argued  before  it,   and cannot,therefore,  be  deemed to have been decided  by  this decision. Then  we  have a batch of four decisions  reported  in  1958 which  are  relevant for our purpose. In  Hartwell  Prescott Singh  v.  The Uttar Pradesh Government &  Ors.(1)  a  civil servant  held  a  post  in  a  temporary  capacity  in   the Subordinate  Agriculture  Service, Uttar  Pradesh,  and  was shown  in the gradation list as on probation.  He was  later appointed with the approval of the Public Service Commission of the United Provinces to officiate in Class II of the said Service.   After  about  10 years, he was  reverted  to  his original temporary appointment and his services were  there- after terminated under Rule 25(4) of the Subordinate 1)   [1958] S.C.R. 509 715 Agriculture  Service  Rules.  Dealing with  the  said  civil servant’s  objection  that the termination of  his  services contravened Art. 311(2), this Court held that reversion from a temporary post held by a person does not per se amount  to reduction  in  rank.  To decide whether the reversion  is  a reduction  in rank, the post held must be of  a  substantive rank  and further it must be established that the  order  of reversion  was  by  way  of penalty.   As  we  have  already discussed, the cases of temporary servants, probationers and servants holding posts in officiating capacities stand on  a different footing and the principles applicable to them  are now firmly established and need not detain us. The next decision in the same volume is the State of  Bombay v. Saubhagchand M. Doshi(1).  This was a case of  compulsory retirement  under  Rule 165-A of the Bombay  Civil  Services Rules as amended by the Saurashtra Government.  In I so  far as,  this  case dealt with the compulsory  retirement  of  a civil  servant,, it is unnecessary to consider the  Rule  in question or the facts relating to the compulsory  retirement of  the  civil servant.  It is of interest to note  that  in dealing   with  the  question  as  to   whether   compulsory retirement  amounted to removal or not the tests which  were applied  were  in  regard to the  loss  of  benefit  already accrued  and stigma attached to the civil servant.   It  is,

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however, significant that in considering the objection based on  the contravention of Art. 311(2), Venkatarama  Aiyar  J. took  the precaution of adding that "questions of  the  said character could arise only when the rules fix both an age of superannuation and an age for compulsory ’retirement and the services of a civil servant are terminated between these two points  of time.  But where there is no rule fixing the  age of compulsory retirement, or if there is one and the servant is retired before the age prescribed therein, then that  can be  regarded  only as dismissal or removal within  Art.  311 (2)." It would be noticed that the rule providing (1) [1958]     C.R. 571. 716 for compulsory retirement was upheld on the ground that such compulsory retirement does not amount to ,removal under Art. 311(2)  because  it was another mode of  retirement  and  it could  be  enforced  only  between  the  period  of  age  of superannuation  prescribed and after the minimum  period  of service indicated in the rule had been put in.  If, however, no  such  minimum  period  is  prescribed  by  the  rule  of compulsory retirement, that according to the judgment, would violate  Art.  311(2)  and  though  the  termination  of   a servant’s   services   may  be   described   as   compulsory retirement,  it would amount to dismissal or removal  within the  meaning  of Art. 311(2).  With respect, we  think  that this  statement  correctly represents the true  position  in law. The  third case in the said volume is the case of  parshotam Lal Dhingra v. Union of India.(1) In this case, Das C.J. who spoke for the Bench considered comprehensively the scope and effect  of the relevant constitutional  provisions,  service rules  and  their  impact  on the  question  as  to  whether reversion of Dhingra offended the provisions of Art. 311(2). Dhingra  was  appointed as a Signaller in 1924 and  promoted to  the post of Chief Controller in 1950.  Both these  posts were  in  Class III Service.  In 1951, he was  appointed  to officiate  in  Class 11 Service as  Asstt.   Superintendent, Railway Telegraphs.  On certain adverse remarks having  been made  against him, he was reverted as a subordinate till  he made   good  the  short-comings.   Then,  Dhingra   made   a representation.  This was followed by a notice issued by the General Manager reverting him to Class III appointment.   It was this order of reversion which was challenged by  Dhingra by  a writ petition.  It would thus be seen that  the  point with which the Court was directly concerned was whether  the reversion  of an officiating officer to his  permanent  post constituted reduction in rank or removal under Art.  311(2). The  decision of this question was somewhat  complicated  by the  fact that certain defects were noticed in the  work  of Dhingra (1)  [1958] S.C.R 828.  717 and the argument was that his reversion was in the nature of a  penalty, and so, it should be treated as reduction  under Art.  311(2).  This Court rejected Dhingra’s contention  and held  that  the reversion of an officiating officer  to  his substantive  post  did not attract the  provisions  of  Art. 311(2).  Though the decision of the question which  directly arose  before  this  Court thus lay  within  a  very  narrow compass,  it appears that the matter was elaborately  argued before   the  Court  and  the  learned  Chief  Justice   has exhaustively  considered  all  the  points  raised  by   the parties.   For  our present purpose, it  is  unnecessary  to summaries the reasons given by the learned Chief Justice for holding  that  the reversion of Dhingra did  not  amount  to

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reduction  in  rank.   The  only  point  which  has  to   be considered  by  us is whether the observations made  in  the course  of  this judgment in regard  to  permanent  servants assist the learned Addl.  Solicitor-General and if they  do, what is their effect?  Broadly stated, this decision widened the  scope of Art. 311 by including within its  purview  not only permanent servants, but temporary servants and servants holding  officiating posts also.  The decision further  held that  dismissal, removal and reduction represent  the  three major  penalties contemplated by the relevant service  rules and  it  is only where the. impugned orders partake  of  the character  of  one or the other of the said  penalties  that Art.  311(2) can be invoked.  In the course of his  judgment the  learned Chief Justice has referred to Rule 49  and  the explanation  attached thereto.  The explanation to the  Rule clearly  shows  that  it  refers  to  persons  appointed  on probation,  or  persons holding temporary  appointments  and contractual  posts.  It is in the light of this  explanation that  the  learned Chief Justice proceeded  to  examine  the contention raised by Dhingra that his reversion amounted  to reduction  in  rank and so, it became necessary  to  examine whether  any  loss  of  benefit  already  accrued  had  been incurred  or  any stigma had been attached  to  the  servant before  he was reverted.  It is in that connection that  the Court also held that though a kind of enquiry may have 718 been  held and the short-comings in the work of Dhingra  may have weighed in the mind of the authority who reverted  him, the  said motive could not alter the character of  reversion which  was not reduction within the meaning of Art.  311(2). All those points have been considered and decided and so far as  the  temporary  servants  probationers,  or  contractual servants are concerned, they are no longer in doubt. In  regard to permanent servants, the learned Chief  Justice has  made  some observations which it  is now  necessary  to consider  very carefully.  "The appointment of a  government servant  to  a permanent post," observed the  learned  C.J., "may  be  substantive or on probation or on  an  officiating basis.   A  substantive appointment to a permanent  post  in public service confers normally on the servant so  appointed a  substantive right to the post and he becomes entitled  to hold  a lien on the post."(p. 841) On the same subject,  the learned  C.J  has later added that "in the  absence  of  any special   contract,   the  substantive  appointment   to   a -permanent  post gives the servant so appointed 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  proper enquiry  after due notice to him." (p. 843).  Reading  these two  observations together, there can be no doubt that  with the  exception of appointments held under special  contract, the  Court took the view that wherever a civil  servant  was appointed to a permanent post substantively, he had a  right to hold that post until he reached the age of superannuation -or was compulsorily retired, or the post was abolished.  In all  other cases, if the services of the said  servant  were terminated,  they  would have to be in conformity  with  the provisions of Art. 311(2), because termination in such cases amounts to removal.  The two statements of the law to  which we have just 719 referred do not leave any room for doubt on this point.

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Later  during  the  course of  the  judgment,  learned  C.J. proceeded  to examine Rule 49 and the explanations added  to it, and then reverting to the question of permanent servants once again, he observed that "it has already been said  that where  a  person is appointed substantively to  a  permanent ’post in Government service, he normally acquires a right to hold  the post until under the rules, he attains the age  of superannuation 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 Art. 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  employment."  (pp.  857-58).   With respect  we ought to point out that though the learned C.  J at  this place purports to reproduce what had  already  been stated  in  the  judgment,  he  has  made  two   significant additions  because in the present statement he refers  to  a contract or service rules which may permit the authority  to terminate the services of a permanent servant without taking the case under Art. 311(2), though such termination may  not amount to ordinary or compulsory retirement.  The absence of contract,  express or implied, or a service rule, which  has been introduced in the present statement are not to be found in the earlier statements to which we have already referred, and  addition of these two Clauses apparently is due to  the fact  that  the  learned C.J. considered  Rule  49  and  the explanations  attached  thereto and brought  them  into  the discussion  of a permanent servant, and that, we venture  to think  is  not strictly correct.  As we  have  already  seen Explanation  No.  1  to R. 49 is  confined  to  the  through categories of officers specified by it in its clauses (a) 720 (b)  and (c), and it has no relevance or application to  the cases of permanent servants. Similarly,   the  same  statement  is  repeated   with   the observation  "as  already stated, if the servant has  got  a right to continue in the post, then, unless ,the contract of employment  or  the  rules  provide  to  the  contrary,  his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A  termination  of  the service of such a  servant  on  such grounds must be a punishment and, therefore, a dismissal  or removal within Art. 31 1, for it operates as a forfeiture of his  right and he is visited with the evil  consequences  of loss  of  pay and allowances." (p. 862).  With  respect,  we wish to make the same comment about this statement which  we have  already made about the statement just cited.  In  this connection, it may be relevant to add that in the  paragraph where this statement occurs, the learned C.J. was summing up the  position  and the cases there considered are  cases  of Satish Chandra Anand, (1) and Shyam Lal(2).  These two cases were concerned with the termination of a temporary servant’s services  and  the  compulsory  retirement  of  a  permanent servant  respectively,  and strictly speaking, they  do  not justify the broader proposition enunciated at the end of the paragraph. At  the  conclusion of his judgment, the  learned  C.J.  has observed that "in every case, the Court has  to  apply   the two tests mentioned above, namely, (1)  whether the  servant had a right to the post or the     rank  or (2)  whether  he has  been  visited  with  evil  consequences  of  the   kind

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hereinbefore referred to." (p. 863) It would be noticed that the  two tests are not cumulative, but are  alternative,  so that  if  the  first test is  satisfied,  termination  of  a permanent servant’s services would amount to removal because his  right  to the post has been prematurely  invaded.   The learned C.J. himself makes it clear by adding (1) [1953] S.C.R. 655. (2) [1955] 1 S.C.R. 26. 721. that  if the case satisfies either of the two tests, the  it must  be  held that the servant had been  punished  and  the termination of his services must be held to be wrongful  and in  violation of the constitutional rights of  the  servant. It  would  thus  be noticed that the  first  test  would  be applicable  to the cases of permanent servants, whereas  the second  test  would be relevant in the  cases  of  temporary servants,  probationers and the like.  Therefore, we do  not think  the learned Addl.  Solicitor-General is justified  in contending  that all the observations made in the course  of this  judgment  in regard to  permanent  servant  considered together support his contention.  Besides if we may say  so, with respect, these observations are in the nature of obiter dicta  and  the learned Add1 Solicitor-General  cannot  rely solely  upon them for the purpose of showing that R.  148(3) or  R. 149(3) should be held to be valid as a result of  the said observations. The  last decision on this point rendered by this  Court  in 1958 (vide P. Balakotaiah v. The Union of India &  Others(1) dealt  with  the  case of Balakotaiah who  was  a  permanent railway  servant and whose services had been terminated  for reasons  of  national  security under s. 3  of  the  Railway Services (Safe guarding of National Security) Rules, 1949.It appears  that in this case, Balakotaiah who  challenged  the order  terminating  his services before the  High  Court  of Nagpur,  failed  because the High Court held that  the  said order was justified under Rule 148(3) of the Railway  Rules. In his appeal before this Court, it was urged on his  behalf that the High Court was in error in sustaining the  impugned order  under the said Rule when the Union of India  had  not attempted  to rely on the said Rule, and the impugned  order did not purport to have been passed under it.  The  argument was  that the impugned order had been passed under R.  3  of the Security Rules and the High Court should have considered the  matter  by  reference to the said Rule and  not  to  R. 148(3).  This plea was (1) [1958] S.C.R. 1052. 1/SCI/64 46 722 upheld by this Court, and so, Balakotaiah’s challenge to the validity of the impugned order was examined by reference  to security  rule 3. The scheme of the relevant Security  Rules was  then considered by this Court and it was held that  the said  Rules  did  not  contravene either  Art.  14  or  Art. 19(1)(c) of the Constitution as contended by the  appellant. Having held that the impugned rule was not unconstitutional, this Court proceeded to examine the further contention  that the  procedure prescribed by the said rules for  hearing  of the charges does not satisfy the requirement of Art. 311 and as such, the said Rules are invalid. Rules,  3,  4 and 5 of the Security Rules which  dealt  with this  point do contemplate some kind of an enquiry at  which an opportunity is given to the railway servant concerned  to show  cause against the action proposed to be taken  against him.  Rule 7 also provides that a person who is compulsorily retired  or whose service is terminated under Rule 3,  shall

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be  entitled to such compensation, pension, gratuity  and/or Provident Fund benefits as would have been admissible to him under  the  Rules applicable to his service if he  had  been discharged  from  service due to the abolition of  his  post without any alternative suitable employment being  provided. The  contention was that the nature of the  enquiry  contem- plated  by  the  relevant  Rules did  not  satisfy  the  re- quirements  of  Art.  311(2), and so, the  Rules  should  be struck  down as being invalid and the order terminating  the services  of  Balakotaiah should therefore, be  held  to  be invalid.   This  argument was rejected by  this  Court,  and relying  upon the earlier decisions in the cases  of  Satish Chandra Anand(1), Shyam Lal(2) Saubhagchand M. Doshi(3)  and Parshotam  Lal  Dhingra  (4)  it was  held  that  the  order terminating the services of the railway, employee which  can be (1) [1953] S.C.R. 655. (3) [1958] S.C.R. 571. (2)  [1955] 1 S.C.R. 26. (4)  [1958] S.C.R. 828.  723 passed  under R. 3 is not an order of dismissal or  removal, and  so,  Art. 311(2) is inapplicable.  On  that  view,  the validity of R. 3 was sustained.  In recording its conclusion on   this  point,  this  Court  observed  that   the   order terminating  the  services  under R. 3 stands  on  the  same footing  as an order of discharge under Rule 148 and  it  is neither  one of dismissal nor of removal within the  meaning of Art 311.  Naturally, the learned Addl.  Solicitor-General relies on this statement of the law. In  appreciating  the  effect of  this  observation,  it  is necessary to bear in mind that in the earlier portion of the Judgment,  this  Court  has  specifically  referred  to  the argument   that  the  Security  Rules  had  an   independent operation  of their own quite apart from Rule 148,  and  has observed that the Court did not desire to express any  final opinion  on that question "as Mr. Ganapathy Iyer is  willing that  the  validity  of  the orders  in  question  might  be determined  on the footing that they were passed under R.  3 of  the  Security Rules without reference to R.  148.   That renders  it necessary to decide whether the  Security  Rules are  unconstitutional  as contended by  the  appellant."  It would  thus be noticed that having upheld the contention  of the  appellant Balakotaiah that the High Court was in  error in  referring to and relying upon R. 148(3) for the  purpose of  sustaining the impugned order terminating his  services, this  Court  had  naturally  no  occasion  to  consider  the validity,  the effect or the applicability of the said  Rule to  the case before it, and so, the attention of  the  Court centered  round  the  question as to  whether  the  relevant security  rule was valid and whether it justified the  order passed  against the appellant.  In dealing with this  aspect of  the matter, this Court no doubt came to  the  conclusion that  the termination of Balakotaiah’s services under  R.  3 did  not  amount to his removal or dismissal; but  since  no argument was urged before the Court in respect of R. 148(3), the  reference  to  the said Rule made by  the  judgment  is purely  in  the  nature of an obiter, and  so,  we  are  not prepared to 724 read  that statement as a decision that R. 148(3) is  valid. To read the said statement in that manner would be to ignore the fact that this Court had reversed the conclusion of  the High Court that the impugned order was valid under R. 148(3) specifically  on the ground that case had not been made  out

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by  the Union of India and should not have been  adopted  by the  High  Court.  It is thus clear that as,  the  case  was argued  before  this  Court and considered,  R.  148(3)  was outside the controversy between the parties.  That is why it would be unreasonable to rely on the reference to R. 148  in the  statement  made in the judgment on  which  the  learned Addl.  Solicitor-General relies. There  is  another aspect of this question to which  we  may incidentally  refer before we part with this case.  We  have already quoted the observation of Veinkatarama Aiyar J.;  in the case of Subhagchand M. Doshi (1) to the’ effect that  if compulsory  retirement  is  permitted by  any  service  rule without fixing the minimum period of service after which the Rule can  be  invoked,  termination of  the  services  of  a permanent  civil servant by the application of such  a  Rule would be dismissal or removal under Art.     311(2), and  we have  indicated that we regard that statement  as  correctly representing  the  true legal position in  the  matter.   It appears   that   when  this  Court  decided  the   case   of Balakotaiah,  this  aspect  of the matter  ’was  not  argued before  the Court and the observation to which we have  just referred was not brought to its notice. One  more case which still remains to be considered in  this context  is  the  decision in Dalip Singh v.  The  State  of Punjab  (2).  In  this case, Dalip  Singh  was  compulsorily retired  from service by the Rajpramukh of Pepsu  exercising his  power under Rule 278 of the Patiala State  Regulations, 1931.   In the quit from which the appeal before this  Court arose he alleged that the order of retirement passed against him amoun- (1) [1958] S.C.R. 571. (2) [1961] 1 S.C.R. 88. 725 ted  to  his dismissal, and so, he claimed  to  recover  Rs. 26,699-13-0  on that basis.  The validity of R. 278 was  not put  in  issue in the proceedings at any  stage.   The  only point raised, ’was that the said Rule was not applicable  to his  case, and it was urged that in the  circumstances,  the order was an’ order of dismissal.  This Court. held that  R. 278  applied to the case, And so, the preliminary  objection against the applicability of the Rule was rejected.  Dealing with  the main contention raised before this Court that  the compulsory  retirement  of  Dalip  Singh  was  removal  from service  within  the  meaning of  Art.  311(2),  this  Court applied the tests laid down in the case of Shyam Lal(1)  and Saubhagchand Doshi(2) and held that the said retirement  did not amount to removal.  Dalip Singh had not lost the benefit which  he  earned  and  though  considerations  of   alleged misconduct  or  inefficiency  may  have  weighed  with   the Government in compulsorily retiring him that did not  affect the  character  of the order;in fact full pension  had  been paid  to the officer, and so, it was held that the order  of retirement is clearly not by way of punishment. At  the  end  of this judgment, this Court  added  that  the observations  made  in the case of Doshi(2)  which  we  have already  cited,  should not be read as laying down  the  law that retirement under R. 278 would be invalid for the reason that  a  minimum period of service had not  been  prescribed before  the  said Rule could be enforced against  the  civil servant.  It would be recalled that in the case of  Doshi(2) Venkatarama  Aiyar J. had observed that if the  two  periods are not prescribed one for superannuation and the other  for enforcing  the  rule of  compulsory  retirement,  compulsory retirement  of  the  officer would amount  to  dismissal  or removal under Art. 311(2). In Dalip Singh’s case (2), it was

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stated that the said observation should not be taken to have laid down any rule of universal application in that  behalf. The (1) (1955] 1 S.C.R. 26              (2) (1958] 1 S.C.R. (3)  [1961] 1 S.C.R. 88 726 learned  Addl.   Solicitor-General has naturally  relied  on these observations. It  is  however,  necessary  to  point  out  that  the  said observations  were made on the assumption that  the  Patiala Rules  did not lay down any minimum period of service  which had  to  be  put in by civil servant  ’before  he  could  be compulsorily retired under Rule 278.    We have already seen that the validity of R.  278  was not challenged before  the Court  in  Dalip  Singh’s case; besides, we  have  now  been referred  to the relevant Patiala Rules, and it appears that the combined operation of Rules 53, 54, 125, 236, 239,  240, 243  and 278 would tend to show that no officer ,could  have been compulsorily retired under R. 278 unless he had put  in at least 12 years’ service.  We are referring to this aspect of the matter for the purpose of showing that the assumption made  by this Court in making the observations to  which  we have  just referred may not be well-founded in fact.   Apart from that, we think that if any Rule permits the appropriate authority  to  retire compulsorily a civil  servant  without imposing a limitation in that behalf that such civil servant should  have put in a minimum period of service,  that  Rule would be invalid and the so-called retirement ordered  under the  said Rule would amount to removal of the civil  servant within the meaning of Art. 311(2). At this stage, we ought to make it clear that in the present appeals,  we are not called upon to consider whether a  rule of compulsory retirement would be valid, if, having fixed  a proper  age  of  superannuation,,  it  permits  a  permanent servant  to be retired at a very early stage of his  career. We  have  referred to the decisions dealing  with  cases  of compulsory  retirement only for the purpose of  ascertaining the effect of the obiter observations made in some of  those decisions  in  relation to the question with  which  we  are directly  concerned.  The question raised by the  orders  of compulsory  retirement so far as it is covered by  the  said decisions  must be deemed to be concluded.  Our  conclusion, therefore, is that rules 127 148(3)  and  149(3)  which  permit  the  termination  of   a permanent railway servant’s services in the manner  provided by  them,  are invalid because the termination  of  services which  the  said  Rules authorise is  removal  of  the  said railway   permanent   servant   and   it   contravenes   the constitutional safeguard provided by Art. 311(2). After  this  Court pronounced its decision in  the  case  of Shyam Lal(1) the question about the validity of Rule  148(3) has  been considered by several High Courts and it  must  be conceded  that  with the exception of two decisions  of  the Calcutta   High  Court  in  Union  of  India   v.   Someswar Banerjee(2)  and  Fakir Chandra Chiki v.  S.  Chakravarti  & Ors(3)   which have held that R. 1709 and R.  148(3)  of the Railway  Rules  are respectively invalid, the  consensus  of judicial  opinion is in favour of the contention  raised  by the  learned Add1.  Solicitor-General.  These decision  have held   that  R.  148(3)  is  constitutionally  valid   (vide Biswanath  Singh  v. District Traffic Supdt.,  N.E  Railway, Sonepur(4),  The Union of India v. Askaran (5) Hardwari  Lal v. General Manager, North Eastern Railway, Gorakhpur(6)  and Anr.,  Kishan  Prasad  v. The Union of India  (7)  and  D.S.

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Srinath v. General Manager Southern Railway, Madras(8).   In fairness, we ought to add that all these decisions proceeded on the basis that the observations made by this Court either in the case of Shyam Lal (1) or in the case of Dhingra(9) in respect of permanent servants amounted to a decision on that point and were, therefore, binding on the High Courts.  Some decisions purport to adopt the said observations and  extend them  logically  in  dealing with  the  question  about  the validity  of Rule 148(3).  With respect, we must  hold  that these  decisions do not correctly represent the  true  legal position in regard to the character of R. 148(3). (1)  [1955] 1 S.C.R. 26. (3)  A.I.R. 1954 Cal. 566. (5)  A.I.R. 1957 Rajastban 836. (7)  A.I.R. 1960 Cal. 264. (2)  A.I.R. 1954 Cal. 399. (4)  A.I.R. 1956 Patna 221 (6)  A.I.R. 1959 All. 439. (8)  A.I.R. 1962 Mad 379. (9) [1958] S.C.R. 828. 728 There  is still one more point which must be considered  and that  is the challenge to the validity of  Rules 148(3)  and 149(3  on  the ground that they contravene Art.  14  of  the Constitution.  The pleadings on this part of the case  filed by both the parties are not very satisfactory; but as to the broad features ’.of the Rules on which the challenge  rests, there  is  no  serious dispute.  We have  already  seen  the Rules; it is urged that they purport to give no guidance  to the  authority  which  would operate  the  said  Rules.   No principle  is laid down which should guide the  decision  of the authority in exercising its power under the said  Rules. Discretion  is left in the authority completely unguided  in the  matter  and  the Rules are so  worded  that  the  power conferred  by  them can be  capriciously  exercised  without offending the Rules.  It is also not disputed by the learned Addl.   Solicitor-General  that no other  branch  of  public services either under the States or under the Union contains any   rule   which  corresponds  to  the   impugned   Rules. Therefore,  basing themselves on these two features  of  the impugned Rules it is argued by the Railway employees  before us that the Rules offend Art. 14. In  support  of  the first argument, it  is  suggested  that though   the  impugned  Rule  may  not  in  terms  enact   a discriminatory  rule  and  in that sense  may  not  patently infringe Art. 14, it may, nevertheless, contravene the  said Art.  if  it  is  so  framed as  to  enable  an  unequal  or discriminatory  treatment  to  be meted out  to  persons  or things  similarly  situated; and in support of  this  point, reliance  is placed on the decision of this Court  in  Jyoti Pershad  v.  The Administrator for the  Union  Territory  of Delhi(1).   Such  a  result, it is  said,  would  inevitably follow where the rule vests a discretion in an authority  as an  executive officer and does not lay down any  policy  and fails  to disclose any tangible, intelligible,  or  rational purpose  which  the  power conferred by it  is  intended  to serve. (1)  [1962] 2 S.C.R. 125 at P. 137. 729 On   the  other  hand,  the  Addl.   Solicitor-General   has contended  that the very purpose of the Rule gives  guidance to the appropriate authority exercising its power under  it; in exercising the said power the appropriate authority  will have to take into account all the relevant circumstances  in regard to the nature and quality of the work of the  railway

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servant  in question and will have to decide  whether  there are  circumstances  which require that the services  of  the said  servant should be terminated.  In dealing with such  a question,  it is plain that the appropriate authority  would naturally  have regard for consideration of public  interest and the interest of the Railway Administration.   Therefore, it  is suggested that the Rule cannot be struck down on  the ground  that it confers absolute, unguided  and  uncanalised power  on the appropriate authority.  Since we have come  to the  conclusion  that  the second attack  made  against  the validity of the Rule under Art. 14 ought to be sustained  we do  not propose to express any opinion on this part  of  the controversy between the parties. The other aspect of the matter arises from the fact that  no other branch of public service contains such a rule for  its civil  servants.  The true scope and effect of Art.  14  has been considered by this Court on several occasions.  It may, however,  be  sufficient to refer to the  decision  of  this Court  in  Shri  Ram Krishna Dalmia  v.  Shri  Justice  S.R. Tendolker  &  Ors.(1) After examining the  Article  and  the relevant decisions of this Court bearing on it, Das C.J. who spoke  for  the  Court stated the position in  the  form  of propositions, (a) to (f).  Propositions (a) and are relevant for  our purpose.  "The decisions of this Court  establish," said  Das C.J., "(a) that a law may be  constitutional  even though  it relates to a single individual if, on account  of some special circumstances or: reasons applicable to him and not  applicable  to others, that single  individual  may  be treated as a class by himself; and (f) that while good faith and knowledge of the existing conditions on the part (1) [1959] S.C.R. 279 at P. 297. 730 of a legislature are to be presumed, if there is nothing  on the face of the law or the surrounding circumstances brought to  the notice of the court on Which the classification  may reasonably   be  regarded  as  based,  the  presumption   of constitutionality cannot be carried to the extent of  always holding  that  there must be  some undisclosed  and  unknown reasons  for subjecting certain individuals or  corporations to  hostile or discriminating legislation."  Applying  these two principles, it is difficult to understand on what ground employment by the Railways alone can be said to   constitute a  class by itself for the purpose of framing  the  impugned Rules.   If considerations of administrative  efficiency  or exigencies of service justify the making of such a rule, why should  such  a  Rule not have been framed in  the  Posts  & Telegraph Department to take only one instance.  The learned Additional  Solicitor-Generaf  frankly  conceded  that  the’ affidavits filed by the Railway Administration or the  Union of  India afforded no material on which the framing  of  the Rule only in respect of one sector of public service can  be -justified.   We appreciate the argument that the nature  of services  rendered  by  employees in  different  sectors  of public  service  may  differ and the  terms  and  conditions governing   employment  in  all  public  sectors   may   not necessarily  be  the same or uniform; but in regard  to  the question  of  terminating the services of  a  civil  servant after  serving him with a notice for a specified period,  we are  unable  to  see how the Railways  can  be  regarded  as constituting  a separate and distinct class by reference  to which  the  impugned Rule can be justified in the  light  of Art.  14.  If there is any rational connection  between  the making of such a Rule and the object intended to be achieved by  it,  that connection would clearly be  in  existence  in several other sectors of public service.  What has  happened

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is  that a provision like R. 148(3) pr R. 149(3)  was  first made  by  the  Railway Companies when  employment  with  the Railways  was  a purely commercial matter  governed  by  the ordinary  rules of contract.  After the Railways were  taken over by the State, that position has essen- 731 tially  altered,  and so, the validity of the  Rule  is  now exposed  to the challenge under Art. 14.  Therefore  we  are satisfied that the challenge to the validity of the impugned Rules  on the ground that they contravene Art. 14 must  also succeed. There is one more point which we ought to mention before  we part with these appeals.  In dealing with the validity of R. 149, Nayudu J. of the Assam High Court who has delivered the minority  judgment in the case of Shyam Behari Tewari &  Ors V.  Union  of India & Anr.(1), has observed  that  the  Rule would be invalid for the additional reason that it  purports to give power to the Railway Administration to terminate the services  of any person in permanent employment  in  railway service  on  notice  at the sweetwill and  pleasure  of  the Railway Administration Such a power, said the learned Judge, can only be exercised by the President in the instant  cases where  the service is under the Union and not by  any  other whereas the Rule in question purports to give that power  to the Railway Administration.  In support of this  conclusion, the learned Judge has relied on the observations made in the majority judgment delivered  by    this  Court in The  State of Uttar Pradesh and ors (2) v.    Babu   Ram  Upadhya.   We ought  to point out that the learned Judge has  misconstrued the effect of the observations on which he relies.  What the said Judgment has held is that while Art. 310 provides for a tenure  at pleasure of the President or the  Governor,  Art. 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  Art.  310.   In  other  words,  in exercising  the power conferred by Art. 309, the  extent  of the  pleasure recognised by Art. 310 cannot be affected,  or impaired In fact, while stating the conclusions in the  form of  propositions,  the said judgment has observed  that  the Parliament or the Legislature can make a law regulating  the conditions of service without affecting (1) A.I.R. 1963 Assam 94 (2) [1961] 2 S.C.R. 6 732 the  powers of the President or the Governor under Art.  310 read  with  Art. 311.  It has also been stated at  the  same place that the power to dismiss a public servant at pleasure is  outside the scope of Art. 154 and, therefore, cannot  be delegated by the Governor to- a subordinate officer and  can be  exercised  by him only in the manner prescribed  by  the Constitution.   In the context, it would be clear that  this latter  observation is not intended to lay down that  a  law cannot  be  made under Art. 309 or a Rule cannot  be  framed under  the  proviso  to the said  Article   prescribing  the procedure  by  which, and the authority by  whom,  the  said pleasure  can  be  exercised.   This  observation  which  is mentioned as proposition number (2) must be read along  with the  subsequent  propositions specified as (3), (4),  (5)  & (6).   The  only point made is that whatever is  done  under Art. 309 must be subject to the pleasure prescribed by  Art. 310.  Naidu J. was, therefore, in error in holding that  the majority  decision  of this Court in the case  of  Babu  Ram Upadhya(1)  supported his broad and  unqualified  conclusion that  R.  149(3) was invalid for the sole  reason  that  the

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power  to terminate the services had been delegated  to  the Railway Administration. In  the result, the four appeals in the first group  succeed and  are  allowed.   The writ petitions filed  by  the  four appellants  in the three High Courts are granted and  orders directed to be issued in terms of the prayers made by  them. The  appellants  would be entitled to their costs  from  the respondents.  The three appeals in the second group fail and are  dismissed with costs.  One set of hearing fees in  each group. SUBBA  RAO J--I agree that the impugned rules infringe  both Art.  14  and  Art.  311(2) of  the  Constitution  and  are, therefore, void.  On 1 Art. 14, 1 have nothing more to  say. But  on  the  impact of the said rules on Art.  311  of  the Constitution, I would prefer to give my own reasons. The  short  but  difficult question is whether  148  of  the Indian Railway Establishment Code, (1)  [1961] 2 S.C.R. 679. 733 Vol. 1 (1951) and r. 149 of the revised edition of the  said Code  of the year 1959 replacing r. 148 of the Code of  1951 edition impinge upon the constitutional safeguard given to a person holding a civil post under the Union Government under Art.  311(2) of the Constitution.  While Art. 311(2) of  the Constitution prohibits the State from dismissing or removing or reducing in rank a civil servant until he has been  given a reasonable opportunity of showing cause against the action proposed  to be taken in regard to him, rr. 148 and  149  of the  said Code in effect enable the Government to  terminate his services after issuing the prescribed notice thereunder’ Prima facie the said rules are in conflict with Art.  311(2) of the Constitution.  Broadly stated, the contention of  the State is that a Union civil servant holds his office  during the pleasure, of the President, that Art. 311 is not  really a limitation on the exercise,of that pleasure, that it  only prescribes safeguards against the imposition on him of three unmerited specified penalties, viz., dismissal, removal  and reduction in rank, and that the termination of his  services for  a  reason other than misconduct personal to  the  civil servant  is not comprehended by any of the  said  penalties. The  further  argument is that the  "doctrine  of  pleasure" implies that a civil servant has no right to an office  even in a case where he has a substantive lien on a post and that in any event he has none when there is a specific rule  that his services can be terminated after the prescribed notice. This  Bench  of seven Judges has been constituted  to  steer clear  of  conflicting observations, if any,  found  in  the judgments of this Court and to arrive at a conclusion of its own  unhampered by  such observations.  I would,  therefore, proceed  to consider the relevant provisions  in  accordance with  the natural tenor of the expressions used therein  and then to scrutinize whether any of my conclusions would be in conflict  with any of the decisions of this Court.   At  the outset  I  must make it clear that I propose to  confine  my discussion only to the question of termi- 734 nation  of services of a permanent civil servant.   None  of the observations I may make is intended to have any  bearing on  the  question of termination of the  services  of  other categories of servants. As the argument of the learned Additional Soli citor-General is  based  upon  the  doctrine  of  pleasure,  it  would  be convenient  at the outset to ascertain the precise scope  of the doctrine in the context of the Indian Constitution. Article 309 is subject to the provisions of the Constitution

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and,  therefore, is subject to Art. 310 thereof Article  311 imposes two limitations on the doctrine of pleasure declared in Art. 310.  The gist of the said provisions is this: Under Art. 309 of the Constitution 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  any  State;  and  until provision  in  that behalf is made, the  President  or  such person  as  he  may direct may  make  rules  regulating  the recruitment  and conditions of service of persons  appointed to  the  said  services and posts  in  connection  with  the affairs   of  the  Union.   In  its  ordinary  meaning   the expression "conditions of service" takes in also the  tenure of  a civil servant.  Under Art. 310, such a  civil  servant holds office during the pleasure of the President; but  Art. 311  imposes two conditions to be satisfied before  a  civil servant  can  be dismissed, or removed or reduced  in  rank, namely, (i) he shall not be dismissed, removed or reduced in rank  by  an authority subordinate to that by which  he  was appointed,   and  (ii)  he  shall  be  given  a   reasonable opportunity of showing cause against the action proposed  to be  taken  in regard to him.  A combined  reading  of  these provisions indicates that the rules made under Art. 309  are subject  to the doctrine of pleasure; and that the  doctrine of  pleasure  is itself subject to two  limitations  imposed thereon  under  Art.  31 1. This tenure  at  pleasure  is  a concept  borrowed  from  English law,  though  it  has  been modified to suit the Indian conditions. 735 The  English law on the doctrine of tenure at  pleasure  has now become fairly crystallized.  Under the English law,  all servants  of the Crown. hold office during the  pleasure  of the  Crown.  The right to dismiss at pleasure is an  implied term in every contract of employment under the Crown.   This doctrine is not based upon any prerogative of the Crown  but on  public policy.  If the terms of  appointment  definitely prescribe  a tenure for good behavior or  expressly  provide for a power to determine for a cause, such   an  implication of a power to dismiss at pleasure is excluded, and an Act of Parliament can abrogate or amend the said doctrine of public policy in the same way as it can do in respect of any  other part  of  common  law. (see The State of U.P.  v.  Babu  Ram Upadhya (1). Section  96-B of the Government of India Act, 1915, for  the first time in 1919, by an amendment, statutorily  recognized this  doctrine, but it was made subject to a condition  that no person in the service might be dismissed by an  authority subordinate to that by which he was appointed.  Section  240 of  the  Government  of India  Act,  1935,  imposed  another limitation, namely, that a reasonable opportunity of showing cause against the action proposed to be taken in regard to a person  must be given to him.  But neither of the  two  Acts empowered   the  appropriate  Legislature  to  make  a   law abolishing or amending the said doctrine.  The  Constitution of  India practically incorporated the provisions of s.  240 and  s. 241 of the Government of India Act, 1935,  in  Arts. 309 and 310.  The English doctrine has been enlarged in  one direction and restricted in another: while Parliament has no power  to  deprive the President of his pleasure,  the  said pleasure is made subject to two limitations embodied in Art. 311.   The English concept is considerably modified to  suit the  conditions  of  our country.   It  is,  therefore,  not correct  to  say that Art. 311 is not a  limitation  on  the power of the President to     terminate  the services  of  a Union civil servant at his    pleasure.    To   accept   the

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argument that the (1) [1961] 2 S.C.R.      679, 696. 736 relevant expression in Art. 311 shall be so construed as  to give full sway to the doctrine is to ignore the  limitations on that doctrine.  Both Art. 310 and Art. 311 shall be  read together  and,  if  so read, it is manifest  that  the  said doctrine is subject to the said two conditions. What  is  the scope of the relevant words,  "dismissed"  and "removed’ in Art. 311 of the Constitution?  The general rule of interpretation which is common to statutory provisions as well  as  to constitutional provisions is to  find  out  the expressed  intention  of the makers of the  said  provisions from  the  words of the provisions themselves.  It  is  also equally  well-settled  that, without doing violence  to  the language  used, a constitutional provision shall  receive  a fair, liberal and progressive construction, so that its true objects might be promoted.  Article 311 uses two  well-known expressions,  "dismissed" and "removed".  The  Article  does not,  expressly or by necessary implication,  indicate  that the dismissal or removal of a Government servant must be  of a particular category.  As the said Article gives protection and safeguard to a Government servant who will otherwise  be at  the mercy of the Government, the said words shall  ordi- narily  be  given  a liberal or at any  rate  their  natural meaning,  unless the said Article or other Articles  of  the Constitution,   expressly  or  by   necessary   implication, restrict  their  meaning.   I  do  not  see  any  indication anywhere  in  the Constitution which compels  the  Court  to reduce the scope of the protection.  The dictionary meaning, of the word "dismiss" is "to let go; to relieve from  duty". The word " remove’ " means "to discharge, to get rid off, to dismiss".   In their ordinary parlance, therefore, the  said words  mean nothing more or less than the termination  of  a person’s office.  The effect of dismissal or removal of  one from  his office is to discharge him from that  office.   In that  sense, the said words comprehend every termination  of the  services  of a Government servant.  Article  311(2)  in effect  lays down that before the services of  a  Government servant are so terminated, 737 he  must be given a reasonable opportunity of showing  cause against  such a termination.  There is no justification  for placing any limitation on the said expressions, such as that the  dismissal or removal should have been the result of  an enquiry  in regard to the Government  servant’s  misconduct. The  attempt  to  imply  the  said  limitation  is   neither warranted  by the expressions used in the Article or by  the reason given, namely, that otherwise there would be no point in  giving  him  an opportunity to defend  himself  If  this argument  the  correct, it would lead  to  an  extraordinary result,  namely,  that  a Government servant  who  has  been guilty  of  misconduct would be entitled  to  a  "reasonable opportunity"  whereas an honest Government servant could  be dismissed  without  any such protection.  In one  sense  the conduct of a party may be relevant to punishment; ordinarily punishment  is meted out for misconduct, and if there is  no misconduct  there could not be punishment.   Punishment  is, therefore,  correlated to misconduct, both in  its  positive and  negative aspects.  That is to say punishment  could  be sustained if there was misconduct and could not be meted out if there was no misconduct.  Reasonable opportunity given to a  Government servant enables him to establish that he  does not  deserve the punishment, because he has not been  guilty of  misconduct.   That apart, a Government  servant  may  be

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removed  or  dismissed  for  many  other  reasons,  such  as retrenchment,  abolition of post, compulsory retirement  and others.  If an opportunity is given to a Government  servant to show cause against the proposed action, he may plead  and establish  that either there was no genuine retrenchment  or abolition of posts or that others should go before him. Now  let me see whether the history of  this  constitutional provision countenances any such limitation on the meaning of the  said  expressions.   As we have  already  noticed,  the concept  of tenure at pleasure was first introduced  in  the Government of India Act, 1919.  Under s. 96-B of that Act, 1/SCI/64 47 738               "(1) Subject to the provisions of this Act and               of rules made thereunder, every person in  the                             civil  service  of  the Crown  in  Ind ia  holds               office during His Majesty’s pleasure, and  may               be employed in any manner required by a proper               authority within the scope of his duty, but no               person in that service may be dismissed by any               authority subordinate to that by which he  was               appointed..." It will be seen that under this section the said concept was introduced  subject to a condition; it may also  be  noticed that  the  section  used  only  one  word  "dismissed".   In England,  under  that  doctrine, services  of  a  Government servant,  whether he is a permanent or a temporary  servant, can be terminated without any cause whether he is guilty  of misconduct or not.  Therefore, when the word "dismissed"  is used in s. 96-B of the Act in the context of the exercise of His Majesty’s pleasure, that word must have been used in the natural meaning it bears, i.e. terminated.  But that section was subject to the provisions of the rules ’made under  that Act.   In exercise of the power conferred under the  Act  on the  Secretary  of  State for India in  Council,  he  framed certain   rules  in  December  1920  and   with   subsequent modifications they were published on May 27, 1930.  The said rules were designated as the Civil Services (Classification, Control and Appeal) Rules.  Rule 49 of those Rules  provided for  certain  penalties  and  cl.  (6)  thereof  dealt  with "Removal from the civil service of the Crown, which does not disqualify from future employment", and cl. (7) provided for dismissal  from  the  civil service  of  the  Crown,  "which ordinarily   disqualified  from  future  employment".    The explanation to that rule read thus:               The termination of employment:-               (a)   of  a  person  appointed  on   probation               during  or  at  the  end  of  the  period   of               probation, in accordance with the terms of the               appointment   and  the  rules  governing   the               probationary service; or               739               (b)   of   a  temporary   Government   servant               appointed  otherwise than under  contract,  in               accordance  with rule 5 of the  Central  Civil               Services (Temporary Service) Rules, 1949; or               (c)   of a person engaged under a contract, in               accordance with the terms of his contract does               not amount to removal or dismissal within  the               meaning of this rule or of rule 55." The  explanation  makes it clear that  the  three  specified categories  of termination covered by the explanation  would amount  to  dismissal or removal but  for  the  explanation. That  is to say, the expression "termination" is  synonymous

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with  the  term "dismissal" or "removal".  Rule  55  of  the Rules  provided  a machinery for dismissing or  removing  or reducing  in rank a Government servant; he should  be  given thereunder an adequate opportunity to defend himself.   Then came the Government of India Act, 1935.  In s. 240  thereof, the  expression used was "dismissed" and that term,  in  the context  of  the exercise of His Majesty’s  pleasure,  could have meant only "termination" of services, though in view of the  explanation  to r. 49 of the Rules  quoted  above,  the three  specified categories of termination mentioned in  the explanation  might,  by construction, be excluded  from  the natural  meaning of the word "dismissal".  Then we  come  to Art.   311   of  the  Constitution,   which   with   certain modifications  incorporated the provisions of s. 240 of  the Government of India Act, 1935.  It introduced the expression "removed"  in  addition to the word  "dismissed"  presumably inspired by rr. 49 and 55 of the Rules.  The natural meaning of  the  said  terms takes in every act  of  termination  of service;  but,  if construed with the help of r. 49  of  the Rules, their meaning may be cut down by excluding the  three categories of termination covered by the explanation in  the manner prescribed therein.  If the termination was otherwise than that prescribed therein, it would still be dismissal or removal.    If  so,  the  history  of   the   constitutional provisions may 740 lead to the conclusion that though the words "dismissed" and "removed"   are   words  of   widest   connotation,   namely "termination"  of  service of any category  held  under  the Union,  they were used in the limited sense they bear in  r. 49  of the Rules, that is to say termination  of  employment excluding the three categories mentioned in the explanation. So far the words "removed" and "dismissed" are concerned, r. 49 shows that there is no appreciable difference between the two  except in the matter of future employment; and Art.  31 1, presumably, copied the two words from r. 49. Therefore,  whether the natural and dictionary  meanings  of the  words  "dismissal" and "removal" were  adopted  or  the limited  meanings  given  to  those  words  by  r.  49  were accepted,  the  result, so far as a permanent  employee  was concerned,  would  be the same, namely that in the  case  of termination of services of a Government servant outside  the three  categories mentioned in the explanation, it would  be dismissal  or removal within the meaning of Art. 311 of  the Constitution  with  the difference that in  the  former  the dismissed  servant  would not be  disqualified  from  future employment  and  in  the  latter  ordinarily  he  would   be disqualified from such employment. If  so,  it  follows that if the  services  of  a  permanent Government servant, which fall outside the three  categories mentioned  in the explanation, were terminated, he would  be entitled   to   protection   under  Art.   311(2)   of   the Constitution. With  this  background  let me now  scrutinise  the  leading judgment of this Court on the subject, namely, Parshotam Lai Dhingra v. Union of India (1).  That was a case of reversion of  a  Government servant who was officiating  in  Class  11 Service as Assistant Superintendent, Railway Telegraphs,  to his  substantive  post in Class III  Service.   This  Court, speaking  through Das C.J., gave an exhaustive treatment  to the scope of Art. 311(2) of the Constitution, parti- (1)[1958] S.C.R. 828. 741 cularly  with  reference to the meaning of  the  expressions "dismissed",  "removed" or "reduced in rank" found  therein.

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A careful reading of the judgment shows that this Court  has heavily   relied   upon  r.  49  of   the   Civil   Services (Classification,   Control  and  Appeal)  Rules,   and   its explanation,  and  attempted to give a legal basis  for  the said  provisions.   On  that basis,  having  considered  the different  aspects of the problem, the Court has  laid  down the  following two tests at p. 863, to ascertain  whether  a person  is dismissed or removed within the meaning  of  Art. 311 of the Constitution; (1) Whether the servant had a right to  the post or the rank or (2) whether he has been  visited with evil consequences of the kind hereinbefore reference to i.e.,  loss of pay and allowances, loss of his seniority  in his substantive rank or the stoppage or postponement of  his future  chances of promotion If an officer had a right to  a post or rank and if the termination of his services deprived him of that right the said termination would be dismissal or removal  as punishment.  So too, if the termination had  the effect  of the officer being visited with evil  consequences then whatever may be the phraseology used for putting an end to  his services, it would be dismissal as punishment.   The motive  operating on the mind of the authority concerned  or the machinery evolved or the method adopted to put an end to his  services are not relevant in considering  the  question whether he was dismissed, if he had a right to the office or if  he  had been visted with evil consequences,  though  the said   circumstances  may  have  some  relevance  as   other decisions of this Court disclose, in ascertaining whether he was  discharged  with  a  stigma  attached  to  him.   While conceding that this decision does not in terms  specifically lay  down  that  even  in the case of  a  person  holding  a permanent  post,  if there was an appropriate  term  in  the conditions of service that his services could be  terminated by  notice,  Art.  311  of the  Constitution  would  not  be attracted,  it  is  contended  that  raison  d’etre  of  the decision and some passages therein lead to that  conclusion. Some of the passages relied upon may be extracted: 742 At pp. 857-858:               "It has already been said that where a  person               is appointed substantively to a permanent post               in Government service, he normally acquires  a               right to hold the post until under the  rules,                             he attains the age of superannuation o r is com-               pulsorily  retired  and in the  absence  of  a               contract express or implied, or a service rule               he cannot be turned out of his post unless  he               is    guilty   of   misconduct,    negligence,               inefficiency  or other  disqualifications  and               appropriate  proceedings are taken  under  the               service rules read with Art. 311(2)." At p. 862:               "As  already stated if the servant has  got  a               right  to continue in the post,  then,  unless               the  contract  of  employment  or  the   rules               provide  to the contrary, his services  cannot               be  terminated otherwise than for  misconduct,               negligence,  inefficiency  or other  good  and               sufficient cause." These passages certainly lend support to the argument of the learned  counsel,  but  the  qualifying  clauses  on   which reliance  is placed are only incidental  observations.   The main  principles relevant to the present enquiry  were  laid down by the Court clearly and precisely at p. 860, thus:               "Shortly  put,  the principle is that  when  a

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             servant  has  right  to a post or  to  a  rank               either  under  the terms of  the  contract  of               employment;  express or implied, or under  the               rules governing the conditions of his service,               the  termination  of  the service  of  such  a               servant or his reduction to a lower post is by               itself  and prima facie a punishment,  for  it               operates as a forfeiture of his right to  hold               that  post  or  that  rank  and  to  get   the               emoluments   and   other   benefits   attached               thereto." The following observation further pinpoints the principle;               "One  test for determining whether the  termi-               nation of the service of a government servant               743               is  by  way  of  punishment  is  to  ascertain               whether the servant, but for such termination,               had the right to hold the post." This  decision,  therefore, clearly lays down,  without  any ambiguity, that if a person has a right to hold office under the service rules or under a contract the termination of his services would attract Art 311 of the Constitution.  It also lays  down  that a person holding a substantive  lien  on  a permanent post has a right to such office.  It does not say, expressly or by necessary implication, that even if a person is  deprived  of  such a right, it will  not  be  punishment unless  it  is  inflicted  for  misconduct  in  the   manner prescribed by the service rules. Learned Additional Solicitor-General further relied upon the decisions  of this Court holding that a rule empowering  the Government  to  compulsorily retire a  permanent  Government servant  before that age of superannuation did  not  violate Art.  311 of the Constitution and contended that, on  parity of  reasoning, the impugned rules should likewise be  valid. It  was  asked,  with  considerable  force,  what   relevant distinction  there could be between the said two  categories of  rules  in  the  context  of  the  question  whether  the termination  of  services was dismissal or  not  within  the meaning  of Art. 311 of the Constitution?  In the case of  a Government  servant, the argument proceeded, in either  case he was deprived of his title to office and, therefore,  both cases  were  equally covered by the principle laid  down  in Dhingra’s case(1).  This argument certainly deserves serious consideration. The relevant rules pertaining to compulsory retirement of  a permanent Government servant considered by this Court in the various decisions relied upon by learned counsel may now  be noticed.  In Shyam Lal’s case (2) which is the  sheet-anchor of  the appellants’ argument, the rule  under  consideration was Note 1 to Art. 465-A of the Civil Services  Regulations. The said Note read: (1) [1958] S.C.R. 828 (2) [1955] 1 S.C.R, 26 744               "Government  retains  an  absolute  right   to               retire  any  officer after  he  has  completed               twenty-five  years qualifying service  without               giving  any reasons, and no claim  to  special               compensation   on   this  account   will   be’               entertained.  This right will not be exercised               except  when it is in the public  interest  to               dispense  with  the  further  services  of  an               officer." The  rule considered in The State of Bombay v.  Saubhagchand M.  Doshi  (1)  was r. 165-A of the  Bombay  Civil  Services

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Rules, applicable to the State of Saurashtra, and it read:               "Government  retains an absolute right to  re-               tire any Government servant after he has  com-               pleted 25 years qualifying service or 50 years               of  age, whatever the service, without  giving               any   reason,   and  no   claim   to   special               compensation   on   this   account   will   be                             entertained.  This right will not be exercised               except  when it is in the public  interest  to               dispense  with  the  further  services  of   a               Government  servant  such  as  on  account  of               inefficiency or dishonesty."               Rule  3 of the Railway Services  (Safeguarding               of  National Security) Rules, 1949, was  under               consideration  in Balakotaiah v. The Union  of               India(2) and it read: "A member  of the Railway Service who, in the opinion of the competent authority is engaged in or is reasonably suspected to  be  engaged in subversive activities, or  is  associated with  others in subversive activities in such manner  as  to raise  doubts  about his reliability,  may  be  compulsorily retired from service, or have his service terminated by  the competent  authority after he has been given due  notice  or pay in lieu of such notice in  accordance with the terms  of his service agreement: Provided  that a member of the Railway Service shall not  be retired  or  have  his  service  so  terminated  unless  the competent  authority  is  satisfied that  his  retention  in public  service  is prejudicial to  national  security,  and unless, (1) [1958] S.C.R. 571. (2) [1958] S.C.R. 1052. 745 where  the competent authority is the Head of a  Department, the   prior  approval  of  the  Governor-General  has   been obtained." In  Union  of  India  v. Jeewan Ram(1)  this  Court  had  to consider sub-rr. (3) and (4) of r. 148 of the Indian Railway Establishment  Code,  Vol.  1.  The  rule  which  was  under scrutiny in Dalip Singh v. The State Punjab(2) was r. 278 of the Patiala State Regulations, which read:               "For  all classes of pensions the  person  who               desires  to obtain the pension is required  to               submit  his application before any pension  is               granted to him.               The  State  reserves to itself  the  right  to               retire  any  of its employees  on  pension  on               political or on other reasons." The  cases  of  Shyam  Lal and  Doshi  were  decided  before Dhingra’s case and the cases of Dalip Singh and Balakotaiah, after Dhingra’s.  In all the cases, under the relevant rules the  age  of  superannuation  was fixed  but  the  order  of compulsory retirement was made before the Government servant reached the age of superannuation.  The rule in Shyam  Lal’s case ex facie declares that the right will not be  exercised except  when it is in the public interest to dispensed  with the  further services of an officer indicating thereby  that the compulsory retirement is imposed as punishment for  some sort of dereliction of duty on his part and, therefore,  the termination of service under that rule necessarily carries a stigma  with  it.   The  rule in  Doshi’s  case(3)  iS  more emphatic than that in Shyam Lal’s case: the rule in  Doshi’s case  elaborate what is implicit in the rule  considered  in Shyam  Lal’s  case and declares that the right  there  under

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shall  be  exercised by the Government only in the  case  of inefficiency or dishonesty of the Government servant Rule  3 of the Railway Services (Safeguarding of National  Security) Rules considered in Balakotaiah case (4) expressly says that the  order  of  compulsory  retirement  will  be  made   for misconduct defined therein. (1) A.I.R. 1958 S. C. 905.             (2) [1961] 1 S.C.R. 8 (3) [1958] S.C.R. 571.                (4) [1958] S.C.R. 105 746 The rule in Dalip Singh’s case(1) gives a very wide power to the  State  to  retire any of its employees  on  pension  on political or other reasons before the age of superannuation. In  short the rules dealt with in the first three  decisions expressly  conferred  an absolute power on  the  appropriate authority to terminate  the services of a Government servant for  misconduct,  and the rule in the fourth  decision  went further and enabled the appropriate authority to dismiss the servant  for  any reason.  It may also be  noticed  that  in Doshi’s  cases(2) this Court expressed the view  that  "when there is no rule fixing the age of compulsory retirement  or if  there is one and the servant is retired before  the  age prescribed  therein,  then  that can  be  regarded  only  as dismissal   or   removal   within   Art.   311(2)   of   the Constitution".   The  emphasis  appears to be  more  on  the existence  of  a rule of compulsory retirement than  on  the character  of the termination itself.  But this  reservation was not accepted by the Court in Dalip Singh’s case(1), that is  to  say, the emphasis is shifted to the existence  of  a rule  of termination detracting from the permanency  of  the post. Pausing  here  a moment, I ask myself the  question  whether these  decisions  can  be  reconciled  with  the   aforesaid principles laid down in Dhingra’s case(3). In Dhingra’s case this  Court  held that a termination of the  services  of  a Government servant, who has substantive lien on a  permanent post, that is to say a title to his office, is dismissal  or removal   within   the  meaning  of  Art.  311(2)   of   the Constitution.    In  the  aforesaid  three   decisions   the Government  servant  concerned  had substantive  lien  on  a permanent  post, but he was compulsorily retired before  the age  of  superannuation depriving him of his  title  to  the post.  it is neither the phraseology used in respect of  nor the nomenclature given to the act of termination of  service that  is material but the legal effect of the  action  taken that  is  decisive  in considering the  question  whether  a Government  servant  is  dismissed  or  not.   Whether   the services of a permanent Government servant are (1)  [1961] 1 S. C. R. 88 (3) [1958] S.C.R. 828. (2) [1958] S. C. R. 571 747 terminated  by  giving him 15 days’ notice  or  whether  his services are dispensed with before the age of superannuation by  way of compulsory retirement under or outside a rule  of compulsory  retirement, the termination deprives him of  his title  to  the  permanent post.  If in the  former  case  it amounts to dismissal, in the latter case it must be  equally so.   I would, prefer the principle laid down  in  Dhingra’s case  (1) in the matter of termination of the services of  a permanent  Government servant to that laid down in the  said other decisions. Rule  148  of the Railway Establishment Code,  Vol.  1,  was considered  both  in Balakotaiah’s case (2)  and  in  Jeewan Ram’s  case(3):  in  the  former,  though  there  were  some observations  in support of the appellants’ contention,  the

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question  of  construction of the rule  was  expressly  left open,  and  in  the latter  though  the  Government  servant concerned  was  discharged  under that  rule,  the  decision proceeded  on  the basis that he was expressly  removed  for misconduct. A number of decisions of the High Courts are cited.  I  have gone through them carefully.  I am not referring to them  in detail, as, though some of the judgments contain instructive discussion on though subject, they practically extended  the principle   of  Shyam  Lal’s  case(4)  and  held  that   the termination  of  service, such as under r. 148(3),  was  not dismissal within the meaning of Art. 311 of the constitution As,  in  my view, Shyam Lal’s case must yield  to  Dhingra’s case,  a  further discussion of the said  decisions  is  not called for. The  effect of the two rules is the same; the difference  is only superficial, which lies more in clever drafting than in their  content.  Take for instance the following two  rules: (i) the Government may terminate the services of a permanent Government servant at any time, or after a specified  period but  before  the  normal  superannuation  age,  by  way   of compulsory retirement; and (ii) the Government may terminate (1)  [1958] S. C. R. 828 (3)  A. 1. R. 1958 S. C. 905 (2)  [1958] S. C. R. 1052 (4)  [1955] S. C. R. 26 748 the  services of a permanent civil servant by giving him  15 days’  notice.   Arbitrariness  is writ large  on  both  the rules:  both  the rules enable the Government to  deprive  a permanent civil servant of his office without enquiry.  Both violate  Art. 311(2) of the Constitution.  Both must be  bad or none at all. The   following   principles  emerge  from   the   aforesaid discussion.  A title to an office must be distinguished from the  mode of its termination.  It a person has title  to  an office, ’he will continue to have it till he is dismissed or removed therefrom.  Terms of statutory rules may provide for conferment of a title to an office and also-for the mode  of terminating it. If under such rules a person acquires  title to  an office, whatever mode of termination  is  prescribed, whatever phraseology is used to describe it, the termination is  neither more nor less than a dismissal or  removal  from service;   and  that  situation  inevitably   attracts   the provisions  of Art. 311 of the Constitution.   The  argument that  the mode of termination prescribed derogates from  the title  that  otherwise  would have  been  conferred  on  the employee mixes up two clear concepts of conferment of  title and the mode of its deprivation.  Article 311 is a constitu- tional  protection  given to Government servants,  who  have title  to office, against arbitrary and  summary  dismissal. It  follows  that  Government  cannot  by  rule  evade   the provisions  of  the said Article.  The parties  cannot  also contract themselves out of the constitutional provision. Once  that  principle  is accepted the  cases  dealing  with compulsory  retirement  before  the  age  of  superannuation cannot  also  fall  outside the scope of  Art.  311  of  the Constitution.   Age  of  superannuation  is  common  to  all permanent  civil  servants: it depends upon  an  event  that inevitably  happens by passage of time, unless the  employee dies  earlier or resigns from the post.  It does not  depend on the discretion of the employer or the employee; it is for the  benefit  of the employee who earns a  well-earned  rest with  or  without pensionary benefits for the  rest  of  his life; it has, by custom and by convention, become

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749 an inextricable incident of Government service; and it is an incident  of  a permanent post.   Notwithstanding  the  rule fixing an age of superannuation, a person appointed to  such a  post acquires title to it.  The same cannot be said of  a compulsory retirement before the age of superannuation.   It is  not  an  incident  of  the  tenure;  it  does  not  work automatically  it  is not conceived in the interest  of  the employee  it is a mode of terminating his employment at  the discretion of the appointing authority.  In effect  whatever may be the phraseology used in terminating the services of a Government employee, it is punishment imposed on him, for it not only destroys his title but also inevitably carries with it a stigma such a. termination is only dismissal or removal within the meaning of Art. 311 of the Constitution. I  would,  therefore,  with  greatest  respect,  follow  the principle  laid  down  in Dhingra’s case(1)  in  respect  of permanent  servants in preference to that accepted by  Shyam Lal’s case(2) and the subsequent decisions following it. Now let me turn to the relevant rules of the Indian  Railway Establishment Code, hereinafter called that Code.  The  Code is  in  two volumes.  The first volume  embodies  all  rules governing  the service conditions of railway  servants  with the  exception  of  those  rules  which  correspond  to  the Fundamental  Rules, Supplementary Rules, Pension  Rules  and the  Civil Service Regulations applicable generally  to  all civil servants under the Government of India.  The  excepted rules  are  included in Vol. 11 of  the  Code.   Fundamental Rules  embodied in Vol. 11 of the Code describe, inter  alia the cadre-strength, the different posts in the cadre and the nature  of the appointments made in respect of  such  posts. Broadly  the  posts are divided as  permanent,  officiating, temporary and for definite periods.  Rule 2003 (14)  defines lien  to  mean  th  title  of  a  railway  servant  to  hold substantively either immediately or on the termination of  a period or periods of absence, a permanent post, including  a tenure post, to which he has been appointed substan- (1) [1958] S.C.R. 828. (2) [1955] 1 S.C.R. 2 750 tively.  Under r. 2006, "Unless in any case it be  otherwise provided  in these Rules, a railway servant. on  substantive appointment  to any permanent post acquires a lien  on  that post and ceases to hold any lien previously acquired on  any other post".  Under r.   2009, "A railway servant’s lien  on a  post may, in no circumstances, be terminated,  even  with his  consent, if the result will be to leave him  without  a lien  or a suspended lien upon a permanent post." Rule  2042 provides  that the pay and allowances of a  railway  servant who  is  removed or dismissed from service ceases  from  the date of the order of removal or dismissal.  Rule 2046, under the  heading  "Compulsory  Retirement",  fixes  the  age  of superannuation  for different categories of service.   These rules  clearly  lay  down  that  a.  railway  servant  on  a substantive appointment to a permanent post acquires a  lien on that post and he does not lose it till he attains the age of  superannuation or is dismissed or removed in the  manner prescribed;   that   is,  he  acquires  a  title   to   hold substantively a permanent post.  It is not of much relevance to  give any particular nomenclature to that post.   It  may not  be a life tenure.  It may not also be a permanent  post in the literal sense of the term, but it confers a title  to that post with all the advantages appertaining to that  post and  ordinarily  it comes to an end only  on  the  incumbent attaining  the  age  of  superannuation,  with  or   without

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pensionary   benefits.    Briefly  stated,   the   aforesaid Fundamental  Rules  embodied in Vol. 11 of the  Code  create offices  of stability and security which for  all  practical purposes  are  permanent posts.  If so, the  termination  of services of such a servant can only be dismissal or removal, for he will be deprived of his title to the said office.  If that was the legal position, for the reasons already  given, the  said  r. 148(3) And r. 149, conferring a power  on  the appointing  authority to remove such a permanent servant  on notice would infringe the constitutional protection given to a Government servant under Art. 311 of the Constitution.   A permanent post and such rules cannot stand together:   the latter must inevitably yield to the former. 751 I  therefore, hold that r. 148(3) and r. 149 of the  Railway Establishment  Code,  being violative of the  provisions  of Arts.   14  and  311  of  the  Constitution  are  void   and unenforceable. In the result, I agree that Civil Appeals Nos 711 to 713  of 1962 and Civil Appeal No. 714 of 196 should be allowed  with costs  and that Civil Appeal Nos. 837 to 839 of 1963  should be dismissed wit costs. DAS  GUPTA  J.-The  principal question raised  in  the  four appeals  which have been numbered 711 to 714 of 1962  is  as regards  the validity of Rule 148 (3) of the Indian  Railway Establishment  Code  in respect of  certain  non-pensionable railway  servants  that their services shall  be  liable  to termination on notice for the period as prescribed  therein. The appellants-all railway employees-whose services had been terminated on notice in accordance with the above  provision and  who have failed to obtain relief against the orders  of termination challenge the validity of this provision on  two grounds.   Their  first  contention is  that  this  Rule  in providing   for  termination  of  service  on  mere   notice contravenes   the   provisions   of  Art   311(2)   of   the Constitution;  secondly,  it  is  contended  that  the  Rule violates Art. 14 of the Constitution It will be necessary to examine these two grounds separately. Is  the termination as provided for in the above  provision, in  Rule 148 (3) ’removal’ or ’dismissal within the  meaning of  Art. 311(2) of the Constitution?  That is  the  question that  falls to be answered for deciding the  first  grounds. To  answer  this  against we have  to  determine  first  the connotation  of the two words ’removal’ and  ’dismissal’  as used  in  Art.  311(2).   In  my  opinion,  this  matter  is completely covered by numerous decisions of this Court. Before   turning  to  the  decisions  however  it  will   be convenient  to  examine the matter in the context  in  which Art.  311  (2)  appears in the  Constitution  and  also  the historical  background of the protection  afforded  thereby. For this purpose it is necessary first to consider the three Articles of the Constitu- 752 tion,  viz.,  Arts.  309, 310 and 311.  They  are  in  these words:-               "309.  Subject to the provisions of this  Con-               stitution, 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 : -               Provided that it shall be a competent for  the               President or such persons as he may direct  in               the  case of services and posts in  connection               with  the  affairs of the Union  and  for  the

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             Governor  or  Rajpramukh 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 until provisions 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.               310.  (1) Except as expressly provided by this               Constitution every person who is a member of a               defence  service or of a civil service of  the               Union or of an all-India service or holds  and               post connected with defence or any civil  post               under  the  Union,  holds  office  during  the               pleasure  of the President, and  every  person               who is a member of a civil service of a  State               or  holds any civil post under a  State  holds               office during the pleasure of the Governor or,               as the case may be, the Raj-pramukh of     the               State.               (2)   Notwithstanding that a person holding  a               civil post under the Union or a State holds               office  during the pleasure of  the  President               or,  as  the case may be, of the  Governor  or               Rajpramukh  of the State, any  contract  under               which  a  person,  not being  a  member  of  a               defence service or of an all India service  or               of civil service of, the               753               Union  or  a State, is  appointed  under  this               Constitution  to hold such a post may, if  the               President or the Governor or the Rajpramukh as               the  case may be, deems it necessary in  order                             to  secure  the  services of  a  perso n  having               special   qualifications,  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.               311. (1) 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.               (2)   No  such  person as aforesaid  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.               Provided that this clause shall not apply               (a) where a person  is dismissed or removed or               reduced in rank on the ground of conduct which               has  led  to  his  conviction  on  a  criminal               charge;               (b)   where an authority empowered to  dismiss               or remove a person or to reduce him in rank is               satisfied that for some reason, to be recorded               by  that  authority  in  writing  it  is   not               reasonably practicable to give to that  person

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             an opportunity of showing cause; or               (c)   where  the  President  or  Governor   or               Rajpramukh,  as the case may be, is  satisfied               that  in the interest of the security  of  the               State  it  is not expedient to  give  to  that               person such an opportunity.               (3)   If  any  question arises whether  it  is               reasonably  practicable to give to any  person               an  opportunity of showing cause under  clause               (2),  the  decision thereon of  the  authority               empowered               1/SCI/64-49               754               to dismiss or remove such person or to  reduce               him  in  rank, as the case may  be,  shall  be               final." It has to be noticed that both Articles 309   and 310  are subject to Art. 31 1. In other words, if any rule is    made under  Art.  309 as regards the conditions of service  of  a government servant in the matter of his dismissal or removal or reduction in rank it has to comply with the  requirements of Art. 31 1. Again, before any order dismissing or removing or  reducing  a government servant in rank is  made  by  the President  or the Governor in exercise of his pleasure,  the President  or the Governor has to comply with  the  require- ments  of Art. 311(2) of the Constitution.  Under  Art.  310 all  servants of the State hold office at pleasure --of  the President or the Governor as the case may be. That by itself means  that the officer has no right to be heard before  his services  are  terminated.   To this Art.  311  provides  an exception  in the case of removal or dismissal.  It is  easy to  see  that if every termination of  service  amounted  to dismissal  or  removal the resultant position will  be  that every  officer would have the right to be heard  before  any action  could be taken under Art. 310.  That would leave  no field  in which Art. 310 could operate.  This by  itself  is sufficient  to  show that not all kinds  of  termination  of service  were  intended to come within  Art.  311.   Reading Articles  310  and  311 together it will  be  reasonable  to understand them to say that the officer will have the  right to be heard before his services were terminated by dismissal or  removal  but in all other cases of  termination  of  his service he will not have any such right. I  have  therefore no hesitation in  rejecting  the  extreme proposition urged on behalf of the appellants that the words dismissal  or  removal  in Art. 311 include  every  kind  of termination of service. This  brings us to the question : what kinds of  termination of  service come within the words dismissal or  removal  and what kinds are not.  Taking the second Dart of the  question first, it is not difficult to mention at least two kinds  of termination which 755 cannot reasonably be included within the words dismissal  or removal.   Take  for instance the case  where  a  government servant  resigns his post but the resignation is  not  under the  rules  effective  before it has been  accepted  by  his superiors.  Here termination results only when the  superior officer  accepts the resignation.  It may be correct to  say that  thereby he terminates the service.  But it  could  not reasonably be said that the superior officer has removed the servant  from service or dismissed him from  service.   Such removal or dismissal was not necessary at all because of the resignation.  Take again the case of a servant who has  been appointed  to an office for a period of three  years.   When

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the  three-year  period ends he is asked to  go.   There  is termination  of  service.  But nobody would  said  that  the superior  officer  by  asking him to go at the  end  of  the period  had dismissed him or removed him from service.   The real  question  however  is not so much as  what  in  common parlance would be understood to be the dismissal or  removal but what the Constitution intended by these words. In this connection it will be helpful to examine the use  of the words dismissal and removal in the earlier  Constitution Acts.   The  Charter  Act of 1793 mentions  in  s.  36  that nothing in this Act contained shall extend, or be  construed to extend to preclude or take away the power of the Court of Directors of the said Company from removing or recalling any of  the officers or servants of the said Company,  but  that the said Court shall and may at all times have full  liberty ,  to  remove, recall, or dismiss any of  such  officers  or servants,  at their will and pleasure in the like manner  as if this Act had not been passed Section 35 made it lawful to and for the King’s Majesty his heirs and successors, by  any writing  or  instrument  under him  or  their  sign  manual, countersigned by the President of the Board of Commissioners for the affairs of India, to remove or recall any person  or person holding any office, employment, or commission,  civil or military, under the said United Company 756 in  India for the time being.  In the Charter Act  of  1833, similar provisions were enacted in ss. 74 and 75. Section 74 make  it  lawful "for His Majesty by any Writing  under  His Sign Manual,countersigned by the President of the said Board of  Commissioners, to remove or dismiss any  person  holding any  office,  employment or commission, civil  or  military, under  the  said  Company  in  India,  and  to  vacate   any Appointment  or Commission of any person to any such  office or employment."               Section 75 ran thus:-               "Provided  always,  and be  it  enacted,  that               nothing in this Act contained shall take  away               the  Power of the said Court of  Directors  to               remove  or  dismiss  any of  the  officers  or               servants of the said Company but that the said               Court  shall  and may at all Times  have  full               Liberty  to  remove  or dismiss  any  of  such               officers   or  servants  at  their  will   and               pleasure............ When the Act of 1,858 transferred the government of India to Her  Majesty  the  Queen of England section 38  of  the  Act provided that.               "Any  writing  under  the  Royal  Sign  Manual               removing or dismissing any person holding  any               office  employment  or  commission,  civil  or               military  in India, of which, if this Act  had               not  been  passed,  a  copy  would  have  been               required to be transmitted or delivered within               eight  days after being signed by Her  Majesty               to  the  Chairman or Deputy  Chairman  of  the               Court of Directors, shall, in lieu thereof, be               communicated within the time aforesaid to  the               Secretary of State in Council." It seems to me that in making these statutory provisions  as regards dismissal or removal of public servants the  British Parliament had in mind those servants only who had  acquired such  a right to the post under their conditions of  service that  but for such statutory provisions their  dismissal  or removal  would  have been unlawful.  If  their  service  was terminable by the ordinary law of the land there

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757 would have been no need in s. 36 of the 1793 Act or s. 75 of the 1833 Act to speak of the right of the Court of Directors of  the Company to remove or dismiss the Company’s  officers or servants at their will and pleasure.  It is clear that by these provisions the British Parliament was emphasizing  the right of the Court of Directors of the Company to remove, or dismiss  such  servants whose services would not  have  been terminable under the ordinary law of master and servant.  It is  also legitimate to read the provisions making it  lawful for  the King of England to remove or dismiss the  Company’s servants (s). 35 in the Charter Act of 1793 and s. 75 of the Charter Act of 1833) as intended to terminate the service of the same class of servants, viz., those whose services  were not terminable under the ordinary law of the land. In the light of this legislative history, the words  removal and dismissal in s. 38 :of the Act of 1858 and thereafter in the  Government of India Act, 1915 (Section 95 and s. 96B  ) cannot  but be read also to mean termination of  service  of such  servants  only  who  would not  have  been  liable  to termination  under the ordinary law of master  and  servant. In  other words, only those servants who by their terms  and conditions of their appointment to the service bad  acquired a right to continue for a particular period which could  not under the ordinary law be put an end to were intended to get the  benefit  of these provisions as  regards  dismissal  or removal. By  the time the Government of India Act., 1935, came to  be enacted by Parliament rules had been framed by the Secretary of State in Council under s. 96B of the Government of  India Act, in which these words, removal and dismissal, were used. Among  the rules framed under this section in 1924 was  Rule XIII, which was in these words:-               "Without  prejudice to the provisions  of  any               law  for  the time being in force,  the  Local               Government   may  for  good   and   sufficient               reasons:               (1) Censure               (2)   Withhold promotion from               758               (3)   Reduce to a lower post               (4) Suspend               (5)   Remove, or               (6) Dismiss any  officer holding a post in a provincial  or  subordinate service or a special appointment." In  the fresh set of rules framed in 1930 Rule 49  took  the place  of  Rule XIII of the earlier Rules and was  in  these words:- "R.   49.   The  following  penalties  may,  for  good   and sufficient  reason and as hereinafter provided,  be  imposed upon members of the services comprised in any of the classes (1) to (5) specified in Rule XIV namely:-               (i)   Censure,               (ii)  withholding of increments or promotion               (iii) reduction to a lower post or time-scale,               or to a lower stage in a time-scale,               (iv)  recovery  from pay of the whole or  part               of any pecuniary loss caused to Government  by               negligence or breach of orders               (v)   suspension,               (vi)  removal  from the civil service  of  the               crown,  which does not disqualify from  future               employment,               (vii) dismissal from the civil service of  the

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             crown,  which  ordinarily  disqualifies   from               future employment.                         Explanation-The discharge-               (a)   of  a  person  appointed  on  probation,               during the period of probation,               (b)   of  a  person appointed  otherwise  than               under    contract   to   hold   a    temporary               appointment,  on the expiration of the  period               of the appointment,               759               (c)   of  a person engaged under contract,  in               accordance  with  the terms of  his  contract,               does not amount to removal or dismissal within               the meaning of this Rule." These  Rules  show that the Secretary of  State  in  Council considered  removal  and dismissal from the service  of  the Crown only as penalties.  Explanation to Rule 49 of the 1930 Rules also shows that discharge from service of a person who had  not acquired a right to the post was not considered  to be removal or dismissal. When  the British Parliament made special provision  in  the Government  of  India  Act,  1935  as  regards  removal   or dismissal  of persons in the civil service of the  Crown  it had  before it not only the history of  these  words-removal and dismissal--in the Charter Act 1793, Charter Act of 1833, Government of India Act, 1858, the Government of India  Act, 1915  but also these Rules framed by the Secretary of  State in Council. It  is  reasonable to think therefore that in  making  these special  provisions in the 1935 Act the  British  Parliament proceeded on the basis that only terminations of service  by way of punishment which could not have been inflicted  under the  ordinary  law of master and servant would  come  within these   words--removal   and  dismissal.    Primarily   such terminations  by  way of punishment could be  made  only  in respect  of those servants who had not acquired a  right  to continue  in  service.  It might however be said  that  even where  there  was no such right and termination  could  have been  effected therefore under the ordinary law of  contract between  master  and servant any termination  which  carried with  it loss of benefits already acquired, say,  forfeiture of  pension  or of provident fund was also  contemplated  to come within these words.  Termination in no other case could be  said to be by way of punishment and in the light of  the previous  history  of  the  use  of  the  words-removal  and dismissal-in connection with the civil servants of the crown it appears to be abundantly clear that 760 in  the Government of India Act, 1935 the words removal  and dismissal   were   not  intended  to  include   such   other terminations. When  the Constitution was framed the provisions as  regards removal and dismissal as contained in s.     240   of    the Government of India Act were embodied ’in    Arts.  310  and 311  with practically little change. Nothing has been  shown to  us to indicate that the Constitution makers  could  have meant  by  these words-removal and dismissal-in Art.  31  1, anything  different  from what the  British  Parliament  had intended  to include under those words in the Government  of India Act, 1935. The   above  consideration  of  the  context   an   previous legislative  history leads to the conclusion that the  words ’removal’  or  ’dismissal’  in  Art.  311  meant  only  such terminations  of  service where the servant had  acquired  a right  to continue in the post which right was cut short  by

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the termination and such other terminations even where there was no such right, as resulted in loss of acquired benefits. Turning  now to the decided cases we find that the  question now under consideration was fully discussed in this  Court’s decision  in  Parshotam Lal Dhingra v.  Union  of  India(1). After an exhaustive discussion of appointments of Government servants to a permanent or temporary post, substantively  or on probation or on an officiating basis, and numerous  rules of  service in connection with such appointments,  Das  C.J. speaking  for  the  majority  of  the  Court  recorded   the conclusion thus:-               "It follows therefore that if the  termination               of  service  is  sought to  be  brought  about               otherwise than by way of punishment, then  the               government   servant  whose  service   is   so               terminated cannot claim the protection of Art.               311(2)."               The learned Chief Justice went on to say:-               "The  foregoing  conclusion however  does  not               solve the entire problem, for it has yet to               (1)   [1958] S.C.R 829               761               be  ascertained  as to when an order  for  the               termination of service is inflicted as and  by               way of punishment and when it is not.  It  has               already  been  said  that where  a  person  is               appointed substantively to a permanent post in               Government  service,  he normally  acquires  a               right to hold the post until under the  rules,               he  attains  the age of superannuation  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 Art. 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 abo ut a pre-               mature end of his employment.  Again, where  a               person is appointed to a temporary post for  a               fixed term of say five years his service  can-               not, in the absence of a contract or a service               rule  permitting its premature termination  be               terminated  before the expiry of  that  period               unless he has been guilty of some  misconduct,               negligence      inefficiency     or      other               disqualifications and appropriate  proceedings               are  taken  under  the rules  read  with  Art.               311(2).   The  premature  termination  of  the               service  of a servant so appointed will  prima               facie  be a dismissal or removal from  service               by way of punishment and so within the purview               of Art. 311(2).               At  page 862, the learned Chief Justice  again               observed:-               In  short,  if the termination of  service  is               founded on the right flowing from contract  or               the  service  rules  then,  prima  facie,  the               termination  is not a punishment  and  carries               with  it no evil consequences and so Art.  311               is  not attracted But even if  the  Government

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             has, by contract or under the rules, the right               to terminate the               762               employment without going through the procedure               prescribed  for inflicting the  punishment  of               dismissal, or removal or reducing in rank, the               Government may nevertheless, choose to  punish               the servant and if the termination of  service               is   sought  to  be  founded  on   misconduct,               negligence,     inefficiency     or      other               disqualification, then it is a punishment  and               the requirements of Art. 311 must be  complied               with." At page 863, the learned Chief Justice observed thus:-               "Thus if the order entails or provides for the               forfeiture  of  his pay or allowances  or  the               loss of his seniority in his substantive  rank               or the stoppage or postponement of his  future               chances  of Promotion, then that  circumstance               may   indicate  that  although  in  form   the               government had purported to exercise its right               to  terminate the employment or to reduce  the               servant to a lower rank under the terms of the               contract of employment or under the rules,  in               truth   and,   reality  the   Government   has               terminated  the  employment as and by  way  of               penalty." Several  years before this the question : what is  meant  by the  words ’removal’ or ’dismissal.’ had been considered  by this  Court in Shyam Lal v. The State of  Uttar  Pradesh(1). Shyam  Lai,  the  appellant,  had  been  ordered  to  retire compulsorily under the provisions of Art. 465A of the  Civil Service  Regulations.   On behalf of the  appellant  it  was urged  inter  alia  that  this  order  was  invalid  as  the provisions  of Art. 311(2) of the Constitution had not  been complied   with. In deciding that the compulsory  retirement did not amount to dismissal or removal within the meaning of Art. 311(2) of the Constitution the Court laid down that (1) every  termination of service does not amount to removal  or dismissal and (2) that dismissal or removal is a  punishment imposed  on an officer as a penalty which involves  loss  of benefit already earned (1)  [1955] (1) S.C.R. 26. It was pointed out that on compulsory retirement an  officer would  not suffer any diminution of the accrued benefit  and though  in a wide sense the officer might  consider  himself punished  by  the deprivation of the chance of  serving  and getting  his pay till he attains the age  of  superannuation and thereafter to get an enhanced pension, there is  clearly a distinction between the loss of benefit already earned and the  loss of prospect of earning something more;  where  the officer did not lose the benefit already earned the same was not  dismissal  or removal.  At page 42 of  the  Report  the Court said:               "Finally,   Rule  49  of  the  Civil   Service               (Classification,  Control  and  Appeal)  Rules               clearly indicates that dismissal or removal is               a  punishment.  This is imposed on an  officer               as a penalty               It involves loss of benefit already earned." In  Doshi’s  Case( ) the Court had to consider an  order  of compulsory  retirement made under Ruled 165A of  the  Bombay Civil Service Rules as amended by the Saurashtra  Government which  gave the Government an absolute right to  retire  any government  servant  after  he had  completed  25  years  of

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qualifying  service or 50 years of age whatever his  service without  giving any reason.  It was held that such an  order was  not  ’removal’  or ’dismissal’ under Art.  311  of  the Constitution.   Speaking for the Court Venkatarama Aiyar  J. said:-               "Now the policy underlying Art. 311(2) is that               when  it is proposed to take action against  a               servant  by  way of punishment and  that  will               entail  forfeiture of benefits already  earned               by  him,  he  should be  heard  and  given  an               opportunity  to show cause against the  order.               But that consideration can have no application               where  the order is not one of punishment  and               results   in  no  loss  of  benefits   already               accrued, and in such a case there is no reason               why  the terms of employment and the rules  of               service should not               (1)   [1958] S.C.R. 571.               764               be given effect to.  Thus, the real  criterion               for deciding whether an order terminating  the               services  of a servant is one of dismissal  or               removal  is to ascertain whether  it  involves               any   loss  or  benefits  previously   earned.               Applying  this  test, an order under  R.  165A               cannot  be  held  to be one  of  dismissal  or               removal,  as it does not entail forfeiture  of               the   proportionate  pension  due   for   past               services." Hartwell’s  Case  I was one of termination  of  a  temporary servant under the U.P. Subordinate Agricultural Service, who for  some  time served in a temporary capacity in  the  U.P. Agricultural Service.  He was first reverted to his original appointment  in the Subordinate Agricultural Service  by  an order  dated May 3, 1954 and later a notice dated  September 13,  1954 was served on him terminating his services in  the Subordinate  Agricultural Service.  The notice purported  to be  under  Rule  25 Cl. 4 of  the  Subordinate  Agricultural Service  Rules.  The Court held that the termination of  the appellant’s  services  under  this rule did  not  amount  to dismissal  or removal within the meaning. of Art. 311 as  it was  in  accordance  with the terms  of  the  conditions  of service  applicable to the appellant.  Imam J. speaking  for the Court observed:               "In   principle,  we  cannot  see  any   clear               distinction  between  the termination  of  the               services  of  a person under the  terms  of  a               contract governing him and the termination  of               his  services in accordance with the terms  of               his conditions of service.The order complained               against  did not contravene the provisions  of               Art. 311 and was therefore a valid order." The proposition that it is not every termination of  service of an employee that falls within the operation of Art. 31  1 and  that it is only when the order is by way of  punishment that  it  is one of dismissal or removal was  reaffirmed  by this  Court  in  Balakotich  v. The Union  of  India  (3  ). Reaffirming also the criteria indicated in Dhingar’s Case(3) as to what amounted (1) [1958] S.C.R. 509.              (2) [1958] S.C.R. 1052. (3)  [1958] S. C. R. 829. 765 to punishment for the purpose of Art. 311, Venkatarama Aiyar J. speaking for the Court observed:-               "The  question  as  to what  would  amount  to

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             punishment  for the purposes of Art.  311  was               also   fully  considered  in   Parshotam   Lal               Dhingra’s.   Case(1) It was therein held  that               if a person had a right to continue in  office               either  under  the service rules  or  under  a               special agreement, a premature termination  of               his  service would result in loss of  benefits               already earned and accrued, that would also be               punishment."               Proceeding  to apply this proposition  to  the               facts of the case before it the Court said:-               "In the present case, the terms of  employment               provide for the services being terminated on a               proper  notice,  and so, no question  of  pre-               mature  termination  arises.  Rule  7  of  the               Security  Rules  preserves the rights  of  the               employee  to  all  the  benefits  of  pension,               gratuities  and the like, to which they  would               be  entitled under the rules.  Thus, there  is               no  forfeiture of benefits  already  acquired.               It was stated for the appellants that a person               who  was  discharged under the rules  was  not               eligible   for  reemployment,  and  that   was               punishment.  But the appellants are unable  to               point  to any rule imposing  that  disability.               The  order terminating services under R. 3  of               the Security Rules stands on the same  footing               as an order of discharge under R. 148, and  it               is  neither  one of dismissal nor  of  removal               within the meaning of Art. 311." The  law as thus settled by this Court was again applied  in Dalip  Singh  v. State of Punjab. (2)  Dalip  Singh  who had been  Inspector-General of Police, PEPSU,  was  compulsorily retired  from  service by the Rajpramukh by an  order  dated August 18, 1950 which ran as follows--               "His Highness the Rajpramukh is pleased to               retire   from  service  Sardar  Dalip   Singh,               Inspector-               (1) [1958] S. C. R. 829.               (2) [1961] 1 S.C.R. 88.               766               General  of Police, PEPSU, (on leave) for  ad-               ministrative reasons with effect from the 18th               August, 1950." The appellant brought his suit asking for a declaration that the  order  by  which  he  was  removed  from  the  post  of Inspector-General  of Police was unconstitutional,  illegal, void,  ultra  vires and inoperative.  Among the  grounds  on which  this declaration was sought was that  the  compulsory retirement  of  the  appellant which  had  been  made  under Regulation 278 of the Patiala State Regulations, was removal from  service  within  the  meaning of  Art.  31  1  of  the Constitution.   Admittedly the requirements of  Art.  311(2) had not been complied with in this case and so the  question had  to be decided whether such a retirement was removal  or dismissal within the meaning of Art. 31 1. The question  was answered by this Court in the negative for the reasons  that the  order  did not amount to punishment because  though  an enquiry had been held against him the charges or imputations against him had not been made the condition of the  exercise of  the power of retirement and further because the  officer was  not losing the benefits he had already earned, as  full pension was ordered to be paid.  To emphasis the point  that where compulsory retirement was in accordance with the rules of  service it could not ordinarily be said to be by way  of

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punishment,  the  Court  pointed out that where  a  rule  of service  provided  for  compulsory  retirement  at  any  age whatsoever  irrespective of the length of service put in,  a retirement  understand  a  rule would  not  be  regarded  as dismissal  or  removal.  An observation in  Doshi’s  Case(1) which might appear to indicate otherwise was not followed it being  pointed out that in Doshi’s Case this matter did  not fall to be considered.  Under Rule 278 he State reserved  to itself  the right to retire any of its employees on  pension on   political or on other reasons.  It did not mention  any particular  age  for retirement under this Rule.   Care  was taken in this case to mention that if the rule would  result in loss (1)  [1958] S. C. R. 571. 767 of  pension already earned, the termination would amount  to removal or dismissal. It is thus clear both on principle and on authority that the words removal and dismissal in Art. 311 of the  Constitution mean and include only those terminations of service, where a servant had acquired a right to continue in the post on  the basis  of  terms and conditions of service, and  such  other terminations,  where  though there were no such  right,  the order  has  resulted in loss of accrued benefits;  and  that terminations  of  service which did not  satisfy  either  of these two tests do not come within any of these words. Applying these tests to the termination of service under the provision  of  Rule 148 (3) of the Railway  Code  that  "the service of other (non-pensionable) railway servants shall be liable  to  termination on notice on either side." I  am  of opinion  that  neither of these is satisfied.  There  is  no doubt  that this Rule applies not only to temporary  railway servants  but also to those railway servants who  have  been substantively appointed to permanent posts in the  railways. A  "permanent post", under the Fundamental Rules  applicable to the railways means a post carrying a definite rate of pay sanctioned   without   limit  of   time.    On   substantive appointment the government servant has a lien on such  post, i.e.,  the right to hold it substantively The right  however is limited by all the terms and conditions of service.   One of  such  conditions  is in the provision in  the  Rule  for compulsory  retirement Rule 2046 of the Railway  Code  which corresponds  to Fundamental Rule 56 provides that  generally the  date  of compulsory retirement of  a  railway  servant, other  than a ministerial servant, is the date on  which  he attains the age of 55 years.  He may be retained in  service after the date of compulsory retirement with the sanction of the  competent  authority on public grounds, which  must  be recorded  in writing, but he must not be retained after  the age  of  60  years except  in  very  special  circumstances. Clause  2  of  Rule 2046 provides  the  rule  of  compulsory retirement  for  ministerial  servants.   Those   government servants 768 who  have  entered government service on or  after  the  1st April,  1938, and those who being in government  service  on the 31st March, 1938 did not hold a lien or a suspended lien on  a  permanent  post on that  date,  shall  ordinarily  be required  to  retire  at  the age of 55  years,  but  if  he continues to be efficient, should ordinarily be retained  in service  upto the age of 60  years but that he must  not  be retained   after   that   age   except   in   very   special circumstances,  which must be recorded in writing, and  with the sanction of the competent authority. These  rules  have  been  modified from  time  to  time  but

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generally speaking a rule has always existed fixing the  age beyond  which  a railway servant will not be allowed  to  be retained   in  service.   If  such  a  rule  of   compulsory retirement  had not existed, the servant would have had  the right  to continue in the service till his death.  The  rule however  limits that right, by providing in effect that  the service  would be terminated at a certain age.  Rule  148(3) is  just  another  rule, limiting  the  servant’s  right  to continue in’ service.  It is as much a condition of  service as  Rule 2046 and in deciding the nature and extent  of  the right  of a railway servant to whom Rule 148(3)  applies  to continue in service, Rule 148(3) is of as much importance as Rule 2046. A railway servant to whom Rule 148(3) applies has two limitations put on his right to continue-(1) termination on attaining a certain age and (2) termination on service of a notice under Rule 148(3).  Where the service is terminated by the order of retirement under Rule 2046, the  termination is  of  a  service where the servant has not  the  right  to continue.  So, it is not ’removal’ or ’dismissal’.   Equally clearly  and  for  the  same reason,  when  the  service  is terminated  by notice under Rule 148(3), the termination  is not &removal’ or ’dismissal’. It  has not been suggested that the second test of  loss  of accrued  benefits  is satisfied in terminations  under  Rule 148(3).   If  in  any  particular  instance  the  order   of termination  entails  loss  of accrued  benefits  that  will happen not because of anything in R. 148(3) 169 but for some extraneous action.  Where that happens it  will be  right  to  consider  such  terminations  as  removal  or dismissal.   But  that  consideration  is  foreign  to   the provisions of Rule 148(3). 1  have  therefore  come to the conclusion  that  the  first ground raised by the appellants in challenging the  validity of Rule 148(3)., viz., that it contravenes the provisions of Art. 311 of the Constitution must be rejected. It  is necessary now to consider the second ground urged  by the  appellants, viz., that Rule 148(3) contravenes Art.  14 of  the Constitution.  Two contentions are urged in  support of  this ground.  First, it is urged that the Rule gives  no guidance  to  the authority who would take action on  it  as regards  the  principle  to be followed  in  exercising  the power.   Secondly, it is urged that the  Rule  discriminates between  railway servants and other public servants.  In  my opinion,   there   is  considerable  force  in   the   first contention.  Classifying the statutes which may come up  for consideration on a question of its validity under Art. 14 of the  Constitution  in  Ram Krishna Dalmia  v.  Justice  S.R. Tendolkar  &  Ors.  "I this Court observed under  the  third class of such statutes thus:-               "A statute may not make any classification  of               the  persons  or  things for  the  purpose  of               applying  its provisions but may leave  it  to               the discretion of the Government to select and               classify   persons  or  things  to  whom   its               provisions  are to apply.  In determining  the               question of the validity or otherwise of  such               a  statute the Court will not strike down  the               law out of hand only because no classification               appears on its face or because a discretion is               given to the Government to make the  selection               or  classification but will go on  to  examine               and ascertain if the statute has laid down any               principle  or policy for the guidance  of  the               exercise  of discretion by the  government  in

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             the    matter    of    the    selection     or               classification." (1) [1959] S.C.R. 279.    1/SCI/64-49 770 Applying  the principle laid down in the above case  to  the present  rule 1 find on scrutiny of the Rule  that  it  does not  lay  down  any  principle or  policy  for  guiding  the exercise  of discretion by the authority who will  terminate the  service in the matter of selection  or  classification. Arbitrary  and uncontrolled  power is left in the  authority to select at its will any person against whom action will be taken.   The  Rule thus enables the authority  concerned  to discriminate  between two railway servants to both  of  whom Rule 148(3) equally applied by taking action in one case and not  taking it in the other.  In the absence of any  guiding principle in the exercise of the discretion by the authority the Rule has therefore to be struck down as contravening the requirements of Art. 14 of the Constitution. It is unnecessary for me to consider the other contention as mentioned  above,  which has been urged in support  of  this ground. My  conclusion  therefore is that though the  provisions  of Rule  148(3) in respect of certain  non-pensionable  railway servants that their services shall be liable to  termination on  notice  for  the  period  prescribed  therein  does  not contravene  Art. 311(2) of the Constitution, it  contravenes Art. 14 of the Constitution and consequently is void. I would accordingly allow with costs the four appeals  (C.A. Nos. 711-713/62 and C.A. No. 714/62) set aside the order  of the High Court and order that appropriate writs be issued in favour of the appellant as prayed for. The  other  three  appeals  (C.A.  Nos.  837-839  of   1963) challenge the decision of the Assam High Court in favour  of three  railway servants whose services had  been  terminated under Rule 149 of the Railway Code, that these  terminations were invalid.  Rule 149(3) is in practically the same  terms as  Rule 148(3) and provides for the termination of  certain railway  servants  on notice on either side for  the  period prescribed.  As, however, before November 1957 non- 771 pensionable  service had been brought to an end, and  option was  given  to non-pensionable servants either  to  opt  for pensionable  service  or to continue  under  their  previous terms  and  conditions  of  service,  Rule  149(3)  mentions permanent  railway servants generally without any  reference to their being nonpensionable.  The validity of his Rule was attacked on behalf of railway servants on the same ground as have  been considered with regard to Rule 148(3).   For  the reasons  already given when discussing Rule 148(3) I  am  of opinion that Rule 149(3) does not contravene Art. 311(2)  of the   Constitution   but   contravenes  Art.   14   of   the Constitution.  The terminations of service under Rule 149(3) of the Railway Code were therefore rightly held by the  High Court  to  be invalid.  I would  accordingly  dismiss  these appeals with costs. SHAH  J.-Except as expressly provided by  the  Constitution, every  member of the defence services or of a civil  service of the Union or an all-India service holds office during the pleasure  of  the  President and every  member  of  a  civil service  of a State holds office during the pleasure of  the Governor  of  the State: Art. 310(1).  This  is  the  normal tenure of office of persons serving the Union or the  State. The doctrine of holding office at pleasure applies even to a person   with  special  qualifications  employed   under   a

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contract, with the reservation that compensation may be paid to such person if before the expiry of the agreed period the office  is  abolished,  or for reasons  not  connected  with misconduct on his part, he is required to vacate that  post: Art.  310(2).  The power to terminate at pleasure vested  by the  Constitution in the President or the Governor,  as  the case may be, is not liable to be restricted by any enactment of  the  Parliament  or the State  Legislature:  it  may  be exercised only in the manner prescribed by the  Constitution and  being  outside  the scope of Arts. 53 and  154  of  the Constitution cannot be delegated : State of Uttar Pradesh v. Babu Ram Upadhya(1) It is open to the (1)  [1961] 2 S.C.R. 679. 772 Parliament and the State Legislatures to enact Acts  subject to   the   provisions  of  the  Constitution   to   regulate recruitment   and  conditions  of  services  and  posts   in connection  with the affairs of the Union or a  State  (Art. 309),  and  until  such legislation is  enacted,-it  may  be observed  that  the  Union Parliament has  not  enacted  any general  legislation governing public servants  employed  by the  Union-the President or the Governor or such  person  as may be directed in that behalf may make rules regulating the recruitment  and conditions of service of persons  appointed to  such  services and posts, and the rules so made  by  the President or the Governor shall have effect, subject to  the provisions of any such Acts.  The power of the President  or the Governor under Art. 310 (which is wholly independent  of the  power conferred by the rules or legislation under  Art. 309),  and  the power conferred by  legislation  enacted  or rules made or continued by virtue of Art. 309 are subject to certain restrictions contained in Arts. 311 & 314.   Article 314 grants certain special protections to members  appointed by  the  Secretary  of State or the Secretary  of  State  in Council  to  a civil service of the Crown in India  and  who continue  on and after the commencement of the  Constitution to serve under the Government of India or a State.   Article 311  provides,  subject  to  the proviso  to  cl.  (2),  two safeguards  to  all public servants who are members  of  the civil  service  of the Union or an all-India  service  or  a civil service of a State   who  hold  civil  posts under  the  Union  or  the States.   These safeguards are-               "(1)  that  such members of the service  shall               not  be dismissed or removed by  an  authority               subordinate to that by which he was appointed;               and               (2)   that  he  shall  not  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." 773 The  proviso to cl. (2) of Art. 311 excludes three  specific classes   of  cases  from  the  protection  of  the   second guarantee. Guarantees  under  Art.  311  are,  except  to  the   extent specifically  provided, absolute and are not subject to  the exercise  of power, legislative or  executive.   Accordingly the  pleasure of the President or of the Governor cannot  be exercised in a manner inconsistent with cl. (2) of Art. 311. Article  310 must therefore be read subject to Art.  311(2), and  the  rules made or legislation enacted under  Art.  309 must  also  be  read  subject  to Art.  31  1.  It  must  be emphasized that the guarantees protect all servants, whether

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appointed  to substantive posts, or employed temporarily  or on  probation, or for limited duration under contracts,  but they  do  not  encompass all penalties  or  terminations  of employment.    The  guarantee  under  cl.  (1)  is   against dismissal or removal by an authority subordinate to that  by which  the public servant was appointed, and under  cl.  (2) against  dismissal,  removal or reduction  in  rank  without being  afforded  a reasonable opportunity of  showing  cause against  the action proposed to be taken in regard  to  him. The  guarantee under cl. (2) does not affect the  investment of  power to dismiss, remove or reduce in rank a  member  of the  civil service; it merely places restrictions  upon  the exercise  of  the power.  Temporary servants  on  probation, officiating  servants  and even those  holding  posts  under contracts-all  have  the protection of Art. 31  1.  But  the consequences of mere determination of employment in the very nature  of things must vary according to the  conditions  or terms  of employment.  Mere determination of  employment  of temporary  servants, or probationers, and of servants  whose tenure is governed by contracts, will not ordinarily  amount to dismissal or removal, for, dismissal or removal according to  the  rules  implies  determination  as  a   disciplinary measure. The appellants in appeals Nos. 711 to 714 of 1962 are public servants  employed in the Railways under the  management  of the Government of India 774 and  were  governed by the rules made under  Art.  309,  and their  services  were terminated in  purported  exercise  of powers  under Rule 148(3).  Rule 148, the validity of  which is  challenged  by  the appellants  in  these  appeals,  was originally  framed  in  1951 in exercise  of  the  authority conferred  by  Art. 309, and was later modified  so  as.  to exclude  from  its  operation  determination  of  employment operating as dismissal or removal as a disciplinary measure. The first clause deals with a temporary railway servant  who holds  no lien on a permanent post under the Union.  Such  a person need be given no notice of termination of employment, if  the termination is due to the expiry of sanction to  the post,  or of the officiating vacancy or is due to mental  or physical  incapacity,  or  where it amounts  to  removal  or dismissal as a disciplinary measure.  Clause (2) deals  with apprentices.    Clause  (3)  deals  with   (non-pensionable) railway   servants,  who  are  substantively  appointed   to permanent posts.  Clauses (3) & (4) provide:               "(3) Other (non-pensionable) railway servants-               The service of other (non-pensionable) railway               servants  shall  be liable to  termination  on               notice  on either side for the  periods  shown               below.  Such notice is not however required 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:-               (a)   Probationary  officers and  officers  on               probation other than those in the Medical               Department   3 months’ notice               (b)   Officers  on  probation in  the  Medical               Department  ‘month’s notice               (c)   Permanent Gazetted                Officers  6 months’ notice               (d)   Permanent Non-gazetted                employees  ‘month’s notice.

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             775               "(4) In lieu’ of the notice prescribed in this               rule,  it shall be permissible on the part  of               the  Railway Administration to  terminate  the                             service of a railway servant by paying  him  the               pay for the period of notice." In  this  group  of  appeals  (Nos.  711-714  of  1962)  the principal  question  raised by the appellants  is  that  the third  clause of Rule 148 is invalid.  The  clause  declares that  the  service  of any railway servant  who  holds  non- pensionable employment is liable to be terminated on  notice on  either  side  of the periods set out in  the  Rule,  but notice terminating employment by the Railway  Administration is not a condition of dismissal or removal or of  retirement on attaining the age of superannuation and of termination of service  due to mental or physical incapacity.   The  clause prescribes  the mode of determination of employment of  non- pensionable railway servants by notice and proceeds to state that  in  the specified cases no notice for  termination  of employment by the Railway Administration shall be necessary. It,’  however, does not follow that in the excepted  classes of  cases  of  the right of the  Railway  Administration  to terminate  employment  is absolute or  unrestricted:  it  is merely intended to be enacted by cl. (3) that notice will be necessary   where  on  compliance  with  other   appropriate conditions,  there  is retirement on attaining  the  age  of superannuation, or determination of employment in compliance with  the provisions of the Constitution, or for  mental  or physical incapacity. Clause (3) of Rule 148 is impugned by the appellants on  two principal grounds:               (1)   that   it  is  inconsistent   with   the               protection  which is guaranteed to all  public               servants by Art. 311(2); and               (2)   that  it  contravenes  the   fundamental               freedom  under Art. 14 of the Constitution  in               that  certain classes of railway servants  are               selected  for  special  prejudicial  treatment               when   no  such  conditions  of  service   are               applicable in any other public employment  and               that in               776               any event an arbitrary power is conferred upon               the  authority competent in that behalf  under               the rules to terminate employment without  any               principle to guide him. Under  the  first  head  it is  urged  that  termination  by ,.notice  of  employment of non-pensionable  servants  under Rule  148(3) being removal from service, in the  absence  of rules  prescribing  machinery  for  affording  a  reasonable opportunity of showing cause against the action proposed  to be taken in regard to such employees, the Rule infringes the constitutional  guarantee under Art. 311 and is void.   This plea assumes that every termination of employment by  notice under Rule 148(3) amounts to removal.  But on the plain text of cl. (3) it is evident that the right to determine employ- ment by notice cannot be exercised in the excepted cases and since  dismissal or removal as a disciplinary measure  falls within  those excepted cases, the President has, by  framing cl. (3) of Rule 148, clearly 1 expressed the intention  that determination  of employment which amounts to  dismissal  or removal  cannot be effected by notice.  In terms the  clause makes  a distinction between determination of employment  by notice  and  determination of employment as  a  disciplinary

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measure,  retirement on superannuation, and termination  for reasons of physical or mental incapacity: it does not confer authority  upon  the  Railway  Administration  to  terminate employment  of a public servant holding a substantive  post, as a disciplinary measure. The Rule is framed under Art. 309, and undoubtedly makes the tenure  of a public servant appointed even substantively  to hold  a  permanent post precarious.   Ordinarily  a  railway servant  appointed substantively to a permanent post  would, under  the rules governing employment, continue  in  service till he attains the age of superannuation but that tenure is made  subject to compulsory retirement after he attains  the prescribed  age  if the railway servant belongs  to  certain specified  classes: vide Rule 2046(2) & (3) of  the  Railway Code,  1958,  and to discharge from  employment  under  Rule 148(3) if his service is non-pensionable.  Inci- 777 dents    relating   to   termination   of   employment    on superannuation,  on orders of compulsory retirement  and  on discharge  from service under Rule 148(3) are parts.  of  an organic  scheme of rules governing the tenure of  office  of railway servants which also includes provisions relating  to dismissal,  removal or reduction in rank as  a  disciplinary measure.   By  being appointed to a post a  railway  servant becomes  entitled  to  the pay  and  allowances,  increments subject  to  efficiencybar, leave,  gratuity,  pension  etc. These are also incidents of employment of the same character as the incident of determination of employment by compulsory retirement, discharge by notice and dismissal or removal. In  considering what the expression "dismissed  or  removed" used  in  Art.  311 means, a brief review  of  the  relevant legislative  history  dealing with the tenure of  office  of civil servants in the employment of the Government of  India may  be  useful.  It is sufficient to note  that  since  the earliest time\all persons holding office--civil or military- under  the East India Company were liable to be  removed  at the  pleasure of the King of England: see s. 35 Charter  Act 1793  (33 Geo.  III Ch. 2): and 74 Charter Act 1833 (3  &  4 will IV Ch. 85).  These provisions however did not take away the power of the Court of Directors to remove or dismiss any of  its officers or servants not appointed by the  Crown  in England.   The  same tenure of service prevailed  after  the British  Crown took over the governance of India, the  power to   make  regulations  in  relation  to  appointments   and admission to services and matters connected therewith  being vested  in the Secretary of State in Council: s. 37  Govern- ment  of India Act 1858 (21 & 22 Vict.  Ch. 106).   For  the first  time under the Government of India Act, 1919 (9 &  10 Geo.   V.  Ch. 101) some protection was conferred  upon  the civil  servants.  By the first clause of s. 96-B the  tenure of  office of every employee under the civil service of  the Crown was during pleasure of His Majesty, but dismissal from service  by  an authority subordinate to that by  which  the officer 678 was appointed was prohibited.  The power of the Secretary of State  for  India  in  Council  to  make  rules   regulating classification  of  civil services, method  of  recruitment, conditions  of  service,  pay,  allowances,  discipline  and conduct was reaffirmed.  This was followed by ss. 240 to 243 of the Government of India -Act, 1935 (26 Geo.  V. & 1 Ed. 8 Ch. 2) which made detailed provisions relating to the tenure of   office  of  persons  employed  in   civil   capacities, recruitment  and conditions of service and rules to be  made in  that  behalf  including  rules  applicable  to  railway,

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custom,   postal   and  telegraph  services,   and   special provisions  relating to the police.  By s. 240, a  guarantee against  dismissal without being afforded an opportunity  of showing  cause to persons employed in civil  capacities  was provided.   By cl. (1) except as provided by the Act,  every member  of a civil service held office during His  Majesty’s pleasure:  by  cl. (2) it was enacted that "no  such  person shall   be   dismissed  from  service,  by   any   authority subordinate  to that by which he was appointed" and  by  cl. (3)  it was enacted that "No such person as aforesaid  shall be  dismissed 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".   This  was  the guarantee of protection conferred by the Government of India Act  1935 upon members of the civil services and  has  since been affirmed by the Constitution in Art. 311 in almost  the same   terms-the  slight  verbal   alteration   substituting "dismissed  or  removed"  for  "dismissed"  having  made  no variation in the content of   the guarantee.  In 1930  Rules were promulgated by the  Secretary  of State  for  India  in Council under. 96-B(2)  of  the  Government  of  India  Act, 1919,called  the Classification, Control and  Appeal  Rules. These Rules did not in terms apply to railway servants,  who were  governed  by a set of rules published as  the  Railway Establishment  Code,  but  these  were  for  all   practical purposes   in   terms   similar  to   the   Civil   Services (Classification,  Control  and Appeal) Rules, which  may  be called  ’the  General Rules’.  Under cl. 49 of  the  General Rules penalties which could be imposed 679 upon civil servants were enumerated and cl. 55 provided that no order of dismissal, removal or reduction shall be  passed upon a civil servant unless he has been informed in  writing of the grounds on which it is proposed to take action and he has  been  afforded adequate opportunity  of  showing  cause against  the  action  proposed to  be  taken.   These  Rules remained  in force after the Government of India Act,  1935, was brought into operation.  Even after the Constitution was brought  into  force,  the  rules  continued  to  remain  in operation   till  1955,  when  a  new  set  of  rules   were promulgated,  but  thereby in Rules 49 & 55  no  substantial variation  was  made It is clear that, under the  scheme  of rules  governing  the  employment of  civil  servants  which obtained prior to the Constitution dismissal. or removal had acquired a definite connotation, and when the  Constitution- makers  adopted the scheme of protection of public  servants in the same form in which it prevailed earlier, an intention to  attribute to the expression "dismissed and removed"  the same content may be assumed in the absence of any  expressed intention   to  the  contrary.   Since  the   constitutional guarantee of protection to public servants is couched in the same  terms, the expression "removal" in the  Service  Rules having  the same meaning as "dismissal" i.e.,  determination of  employment  as a disciplinary  measure  for  misconduct, subject  to  the slight variation that an  employee  removed from  service is not disqualified from future employment  in public   service,  whereas  a  dismissed  employee   is   so disqualified, it may reasonably be held that in the  context of  this development under the Constitution  the  expression "dismissed   or   removed"   has  not   acquired   a   wider signification   to  include  all  terminations   of   public employment, whatever be the cause. Apart from the historical evolution of the guarantee,  there is inherent indication in the constitutional provisions that it  was  not  the intention of  the  Constitution-makers  to

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include  in  the  expression  "dismissed  or  removed"   all -terminations of employ- 780 ment.  Guarantee of reasonable opportunity of showing  cause against  the  action  proposed to be taken in  regard  to  a public servant, would, be wholly   inappropriate in cases of superannuation, expiry   of   the   contractual   priod   of employment, expiry  of  the priod of probation or  temporary employment,  and resignations.  It would be futile  in  such cases  to  provide  for "showing cause".   The  use  of  the expression  "action proposed to be taken in regard  to  him" also  suggests  that  termination of employment  is  of  the nature of penal action. There  is  yet  another  ground which  must  be  taken  into account.  For nearly two centuries prior to the Constitution tenure of public servants has been expressly declared to  be during the pleasure of the British Crown and that tenure has been  repeated  in  the Constitution  in  Art.  310(1)  with appropriate variations entrusting the power to the President or  the  Governor,  as the case may be.   Vitality  of  this declaration  is emphasized in cl. (2) of Art. 310 so  as  to enable  the  President  or the Governor  to  terminate  even contractual  employments at their respective  pleasure.   If the  Constitution-makers intended that every termination  of employment amounted to dismissal or removal within Art. 311, the  provision of Art. 310, solemnly declaring that  members of  the  services civil and defence hold office  during  the pleasure  of  the  President is  reduced  to  a  meaningless formula  having no practical content.  The argument that  it continues  to apply to probationers and temporary  employees ignores  the plain words of the Constitution, beside  unduly minimising  the content of the guarantee in Art.  311  which protects   all  public  servants--temporary,   probationers, contractual as well as those holding substantive posts. There is also a consistent body of authority which has taken the  view that the expression "dismissed or removed"  within the  meaning  of  Art.  311  of  the  Constitution  involves determination  of employment as a disciplinary  measure-that is termination of employment on some ground personal to  the officer concerned, such as incapacity or imputation 781 of   charge  against  him  which  renders   it   inexpedient undesirable  that he should continue in  public  employment: Satish Chandra Anand v. Union of India(1) Shyam Lal v. State of Uttar Pradesh & The Union of India(2); and Parshotam  Lal Dhingra v. Union of India (3). In  considering  whether  termination of  employment  of  a. public servant amounts to dismissal or removal, the  primary test  settled by a uniform course of authority is: does  the termination  amount  to punishment of  the  public  servant, i.e.,  has  it the effect of depriving  the  public  servant concerned  of the right which he has already acquired  as  a public servant, or does it involve evil consequences such as forfeiture  of pay or allowances or other benefits which  by the  rules governing the tenure he has earned, or  impute  a stigma?  A public servant appointed substantively to a  post normally acquires a right to hold the post until he  attains the age of superannuation, and in the absence of a  contract or  service  rules  governing  the  tenure,  discharge  from service  would deprive him of the right he has to the  post. Such  deprivation  of rights already accrued,  or  involving evil consequences, must in all cases amount to dismissal  or removal, for, it amounts to imposing. punishment.  But  mere termination  of  the right to hold a post not as  a  discip- linary  measure,  but  according to the  contract  or  rules

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governing his appointment and tenure, cannot be so regarded, because  the rules which govern his right to the  post  make determination in the manner provided inherent in the  right. By  appointment  to  an office a  public  servant  does  not acquire a right to hold it for his natural life time or even during  good  behaviour His right to hold it is  during  the pleasure of the President or the Governor, according as  his employment  is  under the Union or the State: the  right  is also subject to the contract or rules governing the  employ- ment.   Rules  framed  under Art.  309  relating  to  super- annuation, to compulsory retirement on attaining (1) [1953] S.C.R. 655.               (2) (1955] 1 S.C.R. (3)  [1958] S.C.R. 828. 782 a certain age, or completing a specified period of  service, or  to  determination of employment of temporary  or  quasi- permanent  servants, or those on probation, form  conditions of  service, and govern the tenure, and it is  difficult  to perceive   any  distinction  between  those  conditions   of service,  and  the condition which  expressly  provides  for determination  of employment otherwise than as a  matter  of disciplinary  measure.   The  title  of  a  railway  servant holding a non pensionable office is subject to the condition of  determination by notice under Rule 148(3) which  as  the clause  expressly  provides is not according  to  its  terms exercisable as a disciplinary measure.  It cannot be assumed that on acquisition of the office, a railway servant becomes entitled  to  a right to the post free from  the  conditions attaching thereto by the rules governing his employment.  He is  liable  to’  vacate the  office  on  superannuation,  on compulsory  retirement, on notice of determination,  and  on dismissal or removal alike, i.e., on the supervention of the prescribed  conditions  determination of employment  of  the prescribed  class results, and not otherwise.   Terminations resulting  from causes other than dismissal or  removal  are solely governed by the rules, but in the matter of dismissal or   removal,  beside  the  conditions  prescribed  by   the appropriate   rules,  the  overriding  provisions   of   the Constitution must be complied with. Under the Indian Railway Establishment Code, Vol. 11, "lien" is  defined  in  Rule 2003(14) as meaning  the  title  of  a railway servant to hold substantively, either immediately or on  the  termination  of a priod or periods  of  absence,  a permanent  post,  including a tenure  post to which  he  has been appointed substantively. Evidently lien is the title which the railway servant has to a  post, and a public servant appointed  substantively  must always  till  he is superannuated have lien  on  a  specific post.   On  substantive promotion his lien would  attach  to another  post, his earlier lien being superseded.   While  a railway servant appoin- 783 ted  to another post substantively must have a lien to  that post, it cannot be assumed that his lien continues to attach to any particular post.  The lien is however subject to  the rules:  it does not in any manner confer a right to  hold  a post indefinitely. Counsel for the appellants contended that all the appellants in this group of appeals were permanent employees, and  even superannuation did not put an end to employment, since under the  rules  the  superannuated  employees  had  a  right  to pension.  it  is  impossible to hold  that  a  superannuated employee continues to remain employed.  His employment is at an  end:  he is under no obligation to serve  and  earns  no remuneration.   The  pension is but a payment  made  by  the

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State  for  services  already rendered and not  in  lieu  of services being rendered, or which the public servant may  be called upon to render There can therefore be no  distinction in  principle  between  termination  of  employment  of  the employee attaining the prescribed age of superannuation, and termination  of  services in the manner  prescribed  by  the rules,  by notice, or by an order of compulsory  retirement. In  all cases employment comes to an end Though  the  causes which result in termination are different, the effect is the same, viz., the public servant ceases to be employed. The  argument that on being appointed to a  public  service, the  employee  acquires  right to  continue  in  employment, proceeds  upon a misconception of the nature of  appointment to  a public post.  Appointment to a public post  is  always subject  to the pleasure of the President, the  exercise  of such pleasure being restricted in the manner provided by the Constitution A person appointed substantively to a post does not  acquire  a  right to hold the post  till  he  dies,  he acquires thereby merely a right to hold the post subject  to the rules i.e., so long as under the rules the employment is not  terminated.  If the employment is  validly  terminated, the right to hold the post is determined even apart from the exercise  of the pleasure of the President or the  Governor. There is in truth no permanent 784 appointment  of  a  public servant under the  Union  or  the State.  Nor is the appointment to a public post during  good behaviour,  i.e., a public servant cannot claim to  continue in  office  so long as he is of a good  behaviour.   Such  a concept  of  the  tenure of a  public  servant’s  office  is inconsistent with Arts. 309 and 310 of the Constitution. It  may  be  recalled  that the  guarantee  under  Art.  311 protects  a public servant against dismissal or  removal  or reduction  in  rank as a disciplinary measure.  But  if  the determination  of  service does not amount to  dismissal  or removal  as a disciplinary measure, there is nothing in  the Constitution which prohibits such determination provided  it is consistent with Art. 309 of the Constitution.  The tenure of  office  is subject to Art. 310, prescribed by  Art.  309 that  is the governing code.  The rules  cannot  undoubtedly provide for dismissal or removal otherwise than in a  manner consistent with Art. 311.  Nor can an authority acting under the  rules validly terminate an appointment to a post  in  a manner  contrary to the Constitution or the rules.   Article 311  however covers only a part of the field  governing  the tenure  of  employment  and  in  substance  provides  for  a procedure  for exercising the right to determine  employment in  certain specified classes of cases.  To hold  that  this determination of employment must in all cases, whatever  may be  the source or the power in the exercise of which  it  is determined, is to attribute to it a more exalted effect than is warranted by the scheme of the Constitution disclosed  by Arts. 309 and 310. The  view  which  I have expressed  is  consistent  with  an overwhelming   body  of  uniform  authority   dealing   with different  classes of cases in this Court, and we are  asked to ignore the principle derived from that body of  authority not on the ground of any demonstrable error but on the  sole ground  of a possible misuse of the powers entrusted to  the Railway  Administration  and  that  was,  as  I  understood, practically the only argument advanced at the Bar to justify a 785 departure  from  the settled course of  authority.   But  in considering  whether  cl.  (3) of Rule  148  infringes,  the

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constitutional  guarantee under Art. 311(2), the Court  will not  assume  that  in  exercising  the  power  to  determine employment  the authority competent in that. behalf may  not act  honestly.   The  presumption always is  that  the  high officials  in  whom  the power is vested  Will  perform  the duties  of their office honestly.  A mere  possibility  that the  power may in some cases be misused or abused, will  not per se induce the Court to deny validity to the  entrustment of the power.  The impact of Art. 311 upon Rule 148(3), must be  adjudged in the light of action which may be taken  bona fide  under the Rule.  If in a given case the order  is  not bona fide, and is intended to camouflage an order of removal from  service as a disciplinary measure, the  protection  of Art.  311(2)  would undoubtedly be attracted,  for  such  an order  cannot be regarded as made in exercise  of  authority conferred  by Rule 148(3).  But the Court will  not  adjudge the  rule  invalid  on  the assumption  that  the  rule  may possibly  be abused and may be made a cloak for  imposing  a punishment  on a public servant or that the provision  might be utilised for a collateral purpose. I  will briefly refer to some of the illustrative  decisions of  this Court. In Satish Chandra Anand’s case(1)  discharge from service by notice of a public servant employed under  a contract for the duration of the Resettlement and Employment Organisation  of  the  Union was held  not  to  attract  the protection  of  Art. 311 of the  Constitution.   The  public servant  in Satish Chandra Anand’s case(1) was continued  in service   after  expiry  of  the  period  of  his   original employment,  under  a  contract  for  the  duration  of  the Organisation on condition that he was to be governed by  the Central  Civil  Services (Temporary  Service)  Rules,  1949, which provided, inter alia, for termination of the  contract by a month’s notice on either side.  This Court held that to termination of his service (1)  [1953] S.C.R. 655. 1/SCI/64-50 786 by notice according to the ’rules governing his  employment, Art.  311 had no application.  In the view of the court  the case  was not of dismissal or removal from service,  because the  State  has power to enter into contracts  of  temporary employment  and impose special terms not  inconsistent  with the  Constitution, and those who chose to accept  the  terms and  entered into the contract were bound by them,  even  as the  State  was  bound.   This was a  case  of  a  premature termination  of  a contractual employment in exercise  of  a power  reserved  by  Rules.  The view  expressed  in  Satish Chandra  Anand’s  case(1)  was  approved  in  Parshotam  Lal Dhingra’s case(2) . Several  cases  dealing with termination  of  employment  of temporary  employees  or employees on probation  have  since arisen,  and  it  has  consistently  been  held  that   mere termination  of  employment of these employees  not  on  the ground  of  any misconduct did not amount  to  dismissal  or removal  within  the  meaning  of  Art.  311.   In  Hartwell Prescott Singh v. The Uttar Pradesh Government and others(3) an  order discharging a temporary employee from  service  by giving  him a month’s notice as prescribed by Rule 25(4)  of the U.P. Subordinate Agriculture Service Rules, by which  he was governed, was held not to amount to dismissal or removal within  the  meaning of Art. 31 1. It was observed  in  that case that in principle there was no distinction between  the termination  of service under the "terms of a contract"  and that  in  accordance  with  the  "terms  of  conditions   of service".

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In Parshotam Lal Dhingra’s case (2), Das, C.J., who  entered upon  an  exhaustive review of the Rules  governing  service conditions of public servants of different classes (and with him  all other members of the Bench except Bose J.,  agreed) observed at p. 842:               ".  .  .    in the case of an  appointment  to               permanent post in a Government service on               (1) [19531 S.C.R. 6 5.  (2) [1958] S.C.R. 828.               (3) [19581 S. C. R. 509.               787               probation  or  on an  officiating  basis,  the               servant  so  appointed does  not  acquire  any               substantive right to the post and consequently               cannot  complain,  any  more  than  a  private               servant   employed  on  probation  or  on   an               officiating  basis can do, if his  service  is               terminated   at   any   time.    Likewise   an               appointment  to a temporary post in a  Govern-               ment   service  may  be  substantive   or   on               probation  or on an officiating  basis.   Here               also,   in   the  absence   of   any   special               stipulation or any specific service rule,  the               servant so appointed acquires no right to  the                             post  and his service can be terminate d at  any               time  except  in  one case,  namely  when  the               appointment  to  a  temporary post  is  for  a               definite period." In The State of Bihar v. Gopi Kishore Prasad(1) Sinha  C.J., speaking  for  the  Court  summarised  certain  propositions governing  the tenure of temporary public servants of  which the following two are material:               "(1) Appointment to a post on probation  gives               to  the  person so appointed no right  to  the               post  and  his  service  may  be   terminated,               without any taking recourse to the proceedings               laid down in the relevant rules for dismissing               a public servant or removing him from service.               (2)   The  termination  of  employment  of   a               person holding a post on probation without any               enquiry  whatsoever cannot be said to  deprive               him of any right to a post and is,  therefore,               no punishment.  " In  The State of Orissa and another v. Ram Narayan  das  (2) this Court held that a probationer may be discharged in  the manner   provided  by  Rule  55-B  of  the  Civil   Services (Classification,  Control  and Appeal) Rules,  and  to  such discharge  from service Art. 311(2) did not apply, for  mere termination  of employment does not carry with it  any  evil consequences and an order discharging a public servant, even if he is a (1) [1961] 2 S. C. R. 590. (2) [1961] 1 S. C. R. 606 788 probationer,  on  the  result of an enquiry  on  charges  of misconduct,   negligence,   inefficiency   or   other   dis- qualification,  may appropriately be regarded as one by  way of punishment, but an order discharging a probationer  after an enquiry to ascertain whether he was fit to be  confirmed, is not of that nature. In  S. Sukhbans Singh v. The State of Punjab(1) it was  held that  the  protection of Art. 311 is  available  only  where dismissal,  removal  or reduction in rank is  sought  to  be inflicted  by  way of punishment, and one of the  tests  for ascertaining  whether the termination of service was by  way

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of  punishment is whether under the Service Rules,  but  for such  termination,  the servant has the right  to  hold  the post.   The  same view. was expressed  in  Union  Territory, Tripura  v. Gopal Chandra Datta(2) and in  Ranendra  Chandra Bannerjee v. The Union of India(3). Two cases on the other side of the line, which emphasize the distinction between a mere order of discharge of a temporary servant,  and  an  order dismissing a public  servant  as  a disciplinary measure may be noticed.  In Madan Gopal v.  The State  of Punjab and others(4), this Court pointed out  that where the employment of a temporary government servant, even though  liable  to  be terminated by  notice  of  one  month without assigning any reason, is not so terminated, and  the appointing  authority  holds  an enquiry  into  his  alleged misconduct,  the  termination  of  service  is  by  way   of punishment, because it casts a stigma on his competence  and thus affects his career.  In such a case the public  servant is  entitled  to the protection of Art. 311(2) of  the  Con- stitution.   In Jagdish Mitter v. The Union of India (5)  it was held that an order discharging a temporary servant  from employment  b  notice  after recording that  he  was  "found undesirable  to be retained in Government service"  was  one casting a stigma, and (1)  [1963] 1 S.C.R. 416. (2) [1963] Supp.  1 S.C.R. 266. (3) [1964] 2 S.C.R. 135.  (4) [1963] 3 S.C.R. 716.  (5) A. I. R. 1964 S. C. 449. 789 was   therefore  an  order  of  dismissal   attracting   the application of Art. 311 (2) of the Constitution. There  is still another class of cases which illustrate  the rule   that  termination  of  employment  otherwise   as   a disciplinary  measure  does  not  amount  to  dismissal   or removal.   This  Court  has held that  rules  providing  for compulsorily   retiring   public  servants   holding   posts substantively are valid, and that termination of  employment consequent  upon such compulsory retirement does not  amount to  dismissal or removal from service so as to  attract  the protection of Art. 311(2). In  Shyam  Lal’s  case(1)  challenge  to  the  validity   of termination of employment of a member of the Indian  Service of Engineers compulsorily retired after be completed service for 25 years was discountenanced by this Court on the ground that   compulsory  retirement  under  the   Civil   Services (Classification,  Control and Appeal) Rules, after a  public servant had served for 25 years, did not amount to dismissal or   removal  within  the  meaning  of  Art.  311   of   the Constitution.  It was observed that the word "removal"  used synonymously  with  the term "dismissal"  generally  implied that the officer was regarded as in some manner  blameworthy or  deficient, the action of removal being founded  on  some ground  personal to the officer involving leveling  of  some imputation  or  charge against him.  But there was  no  such element  of charge or imputation in the case  of  compulsory retirement  which did not involve any stigma or  implication of  misbehavior  or  incapacity,  for,  by  the   compulsory retirement the person concerned did not lose any benefit  he had earned and loss of future prospects of earning could not be  taken into account in considering whether the  order  of compulsory retirement amounted to imposing punishment. In  The  State of Bombay v. Subhagchand M. Doshi(2)  it  was held that Rule 165-A of the Bombay Civil Services  (Conduct, Discipline  and  Appeal)  Rules  adopted  by  the  State  of Saurashtra,  subject  to amendment,  authorising  the  State Government to compulsorily (1) [1955] 1 S.C.R. 26.

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(2) [1958] S.C.R. 571. 790 retire  any  public servant who had completed  25  years  of qualifying  service  or had attained the age of  50  ’years, without  giving any reason was not violative of Art.  311(2) of the Constitution, as the order made under Rule 165-A  was not  one  of dismissal or removal.  Venkatarama  Aiyar,  J., observed  at  p. 579 (obiter as was pointed out in  a  later case):               "It  should  be added that  questions  of  the               above  character  could arise  only  when  the               rules fix both an age of superannuation and an               age for compulsory retirement and the services               of  a  civil servant  are  terminated  between               these two points of time.  But where there  is               no   rule   fixing  the  age   of   compulsory               retirement, or if there is one and the servant               is retired before the age prescribed  therein,               then  that  can  be  reregistration  only   as               dismissal or removal within Art. 311(2)." In  P. Balakottaiah v. The Union of India and  others(1)  an order for compulsory retirement under Rule 3 of the  Railway Services  (Safeguarding of National Security)  Rules,  1949, was  challenged  as contravening Art.  311(2).   The  public servants  concerned in those appeals were  railway  servants and  their services were terminated on the ground  that  the General  Manager of the Railways had reason to believe  that they  were guilty of "subversive activities".  Notices  were issued to them under s. 3 of the Rules to show cause against certain  charges.  The Committee of Advisers  enquired  into the  charges  and the explanations furnished by  the  public servants found the charges true.  The General Manager acting on  the report of the Committee terminated the  services  of the railway servants concerned giving them a month’s  salary in lieu of notice.  It was held by this Court that it is not every termination of the services of an employee that  falls within  the operation of Art. 311, and that it is only  when the  order  is  by  way of punishment  that  it  is  one  of dismissal  or  removal under that Article.  It  was  further observed at p. 1065: (1)  [1958] S.C.R. 1052. 791               "In the present case, the terms of  employment               provide for the services being terminated on a               proper  notice, and so, no question of  prema-               ture  termination  arises.   Rule  7  of   the               Security  Rules  preserves the rights  of  the               employees  to  all the benefits  of’  pension,               gratuities  and the like, to which they  would               be  entitled under the rules.  Thus, there  is               no  forfeiture of benefits  already  acquired.               The order terminating the services under R.  3               of  the  Security  Rules stands  on  the  same               footing as an order of discharge under R. 148,               and  it  is neither one of  dismissal  nor  of               removal within the meaning of Art. 311. " The  Court  in that case appeared to  express  the  opinion, though  it was not necessary for deciding the case, that  an order  of  discharge under Rule 148(3) was  neither  one  of dismissal nor removal within the meaning of Art. 311(2). In   Parshotam  Lal  Dhingra’s  case  (1)  the  Court   also considered  the  question  whether an  order  of  compulsory retirement  of a public servant under the appropriate  rules governing him amounts to dismissal or removal from  service. At p. 861, Das C.J., speaking for the majority of the  Court

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observed:               "  . .  .     every termination of service  is               not  dismissal, removal or reduction in  rank.               A termination of service brought about by  the               exercise of a contractual right is not per  se               dismissal or removal,               Likewise the termination of service by compul-               sory  retirement in terms of a  specific  rule               regulating  the conditions of service  is  not               tantamount  to the infliction of a  punishment               and does not attract Art. 311(2), as has  also               been  held by this Court in Shyam Lal  v.  The               State of Uttar Pradesh.  In either of the  two               above-mentioned  cases the termination of  the               service  did  not  carry  with  it  the  penal               consequences  of  loss of pay,  or  allowances               under r. 52 of the Fundamental Rules."               (1)   [1958] S.C.R. 828.               792               .lm0               In  a  still more recent case-Dalip  Singh  v.               State  of Punjab(1) it was held by this  Court               that  an order of compulsory retirement  of  a               public  servant  for  administrative   reasons               under R. 278 of the Patiala State Regulations-               which Regulations did not fix the minimum  age               or  length of service after which an order  of               compulsory  retirement could be  made,was  not               one  of  dismissal  or  removal  from  service               within  the  meaning  of Art.  311(2)  of  the               Constitution,   because  retirement  under   a               Service  Rule  which provided  for  compulsory               retirement  at  any age  irrespective  of  the               length  of service put in, cannot  necessarily               be regarded as dismissal or removal within the               meaning  of  Art. 311,  and  the  observations               (hereinbefore  quoted)  made  by   Venkatarama               Aiyar,  J.,  in Saubhagchand  Doshi’s  case(2)               were  for the purposes of deciding  that  case               obiter,  and  that it was not a  general  rule               that  an  order of compulsory  retirement  not               amounting  to  dismissal or removal  can  take               place  only  under a rule fixing  the  age  of               compulsory retirement.               These  decisions which examine diverse  facets               of   the  tenure  of  employment   of   public               servants,  establish  beyond doubt  that  mere               determination   of  employment  of  a   public               servant whether he be a temporary employee,  a               probationer,  a contractual appointee or  sub-               stantively  holding a permanent post will  not               attract the provisions of Art. 311 (2) of  the               Constitution,  unless  the  determination   is               imposed as a matter of punishment.  All  these               decisions weave a clear pattern of  employment               of  public servants who are governed by  Rules               providing   for  premature  determination   of               employment.   Such determination  of  service,               founded  on a right flowing from  contract  or               the  service  rules,  is  not  punishment  and               carries with it no evil consequences.  It does               not deprive the public servant of his right to               the post, it does not forfeit benefits already               acquired., and casts no stigma upon him.               A railway employee who has accepted employment

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             on  the  conditions  contained  in  the  rules               cannot after having obtained employment, claim               that the               (1)  [1958] S.C.R. 571.(3)[1961]S.C.R. 88                (4)  [1953]  S.C.R. 655   (2)  [1958]  S.C.R.               1052.               793               conditions which were offered to him and which               he  accepted, are not binding upon  him.   The               sole exception to that rule is in cases  where               the   condition  prescribed  by  contract   or               statutory regulations is void as  inconsistent               with   the   constitutional   safeguard,   the               exception  being founded not on any  right  in               the  public  servant  to  elect,  but  on  the               invalidity of the covenant or regulation.   If               the  principle  of the binding nature  of  the               rules  as condition of employment is valid,  I               am unable to see any distinction between cases               of  termination of employment  resulting  from               attaining  the age of superannuation  or  from               orders  of compulsory retirement,  terminating               contracts,  terminating temporary  employment,               or   employments  on  probation,  and   orders               terminating employment after notice under Rule               148(3).   If  Rule 165-A of the  Bombay  Civil               Services (Classification, Control and  Appeal)               Rules, as amended, which fell to be considered               in  Saubh  Chand  Doshi’s  case  (1)  was  not               invalid,  if  Rule  of  the  Railway  Services               (Safeguarding  of  National  Security)  Rules,               1949,  which  fell  to  be  considered  in  P.               Balakottaiah’s  case(2)  was not  invalid,  if               Rule  278  of the  Patiala  State  Regulations               which fell to be considered in Dalip  Singli’s               case (3) was not invalid, if Rule 5(a) of  the               Central    Government   Services    (Temporary               Service)   Rules,  1949,  which  fell  to   be               considered in Satish Chandra Anand’s case  (4)               was  also  not  invalid, it  is  difficult  to               appreciate  any ground either of logic  or  of               law  on  which  the  vice  of  invalidity   as               infringing  Art. 311(2) may be  attributed  to               Rule  148(3).  The termination  of  employment               under Rule 148(3) does not involve the  public               servant  concerned in loss of any right  which               he has already acquired, it does not amount to               loss  of a post to which he is entitled  under               the terms of his employment, because the right               to  the post is necessarily  circumscribed  by               the  conditions  of employment  which  include               Rule 148(3) and does not cast any stigma  upon               him.  In the result I am unable to agree that               (1) [1958] S.C.R. 571. (2) [1958] S.C.R. 1052.               (3) [1961] S.C.R. 88.  (4) (1953] S.C.R. 655.               794               Rule  148(3)  was invalid  as  infringing  the               guarantee  of constitutional protection  under               Art. 311(2).               In  appeals Nos. 837-839 of 1963 the  question               as to the validity of the Rule 149(3) falls to               be determined.  That Rule was substituted  for               the  original  Rule 148(3) some time  in  year               1959.   Rule 149 deals, by its  first  clause,               with  temporary railway servants and  cl.  (2)

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             deals with apprentices.  We are not  concerned               in these appeals either with temporary railway               servants  or with apprentices.  In  this  Rule               cl. (3) deals with the other railway servants.               It provides:               "The  service of other railway servants  shall               be  liable to termination on notice on  either               side for the periods shown below.  Such notice               is   not,  however,  required  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 phvsical incapacity. The Rule then proceeds to set out the different periods  for which  notice may be given terminating  employment.   Clause (4)  of  the Rule provides for payment in  lieu  of  notice. Rule 149(3) makes a departure from Rule 148(3).  The  latter Rule applied only to members of the non-pensionable service, whereas  Rule 149(3) applies to all members of  the  railway service holding substantive appointments, and brings  within its fold all employees--even those who have entered  employ- ment  before the date on which the Rule was framed.  But  if by  the terms of his appointment a railway servant  who  was not governed by Rule 148(3) is brought within Rule 149(3) so as  to  make his employment precarious by  exposing  him  to liability   to   termination   of   employment,    different considerations may apply.  For reasons which I have  already set  out the conditions of service validly made  under  Art. 309 of the Constitution and in existence on the date when  a public  servant  enters service would be binding  upon  him. There is nothing in Rule 149(3) which renders  determination of employment in the 795 manner  provided therein per se inconsistent with Art.  311. But  exercise of the power by the Railway Administration  to determine  employment  of  persons who  were  otherwise  not subject  to  the  new  condition of  service  would,  in  my judgment,  amount  to  imposing a penalty  of  dismissal  or removal.  Therefore termination of services of a person  who held  appointment  to a substantive post  and  was  entitled under  the previous rules to continue until he attained  the age  of superannuation, or till compulsory retirement,  Rule 149(3) made applicable to him after he entered service would per  se  amount  to dismissal or removal  and  it  would  be inconsistent with Art. 311.  This is not because the Rule is invalid,  but  because it would expose  the  public  servant concerned  to  forfeiture, by amendment of the  rules  which were  in  existence at the time when he entered  service,  o rights which he had already acquired. The alternative ground of invalidity that the rule infringes the fundamental right of equal protection of the laws  under Art.  14  of the Constitution may now be  considered.   This ground was set up under two broad heads.               (1)   There  is  no  other  public  employment               under   the  Government  of  India  in   which               conditions similar to these contained in  Rule               148(3)  or  Rule 149(3) exist,  and  therefore               discrimination    between   public    servants               employed  in  Railways  and  public   servants               employed   in   other   branches   of   public               undertakings   or   Administrative    Services               without  any  rational basis  to  support  it,               infringing   the  equal  protection  of   laws

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             guaranteed  by  Art. 14 of  the  Constitution,               results. The argument posed in this form does not appear to have been raised  before the High Court and no investigation has  been made  whether  similar conditions of service do  or  do  not exist in other public employments.  In any event, employment in  the Railways is in a vitally important establishment  of the Union in which the employees are entrusted with 796 valuable equipment and a large measure of confidence has  to be  reposed in them and on the due discharge of  the  duties the  safety of the public and the efficient  functioning  of the  governmental  duties depend.  Not only  the  travelling public, but the Union and the States have in a  considerable measure  to depend upon  rail transport for the  functioning of  the governmental machinery and its  welfare  activities. It would be possible even for one or a few employees of  the Railway to paralyse communications and movement of essential supplies  leading  to disorder and confusion.   The  Railway service has therefore a special responsibility in the smooth functioning  of our body politic and a doctrinaire  approach to  equality of conditions of service in different  branches of  public  employment, irrespective of the  nature  of  the duties performed, irrespective of the possibility of harm to the  community  which  misguided members  or  units  may  be capable  of  doing,  and irrespective of  the  necessity  to entrust special powers to terminate employment in  deserving cases may not be permitted.  If for the purpose of  ensuring the  interests and safety of the public and the  State,  the President  has reserved to the Railway Administration  power to  terminate  employment under the Railways, it  cannot  be assumed  that  such  vesting of authority  singles  out  the railway  servants for a special or discriminatory  treatment so  as  to expose the Rule which authorises  termination  of employment  to the liability to be struck off as  infringing Art.  14.  Article 14 undeniably forbids class  legislation, but  it  does not forbid reasonable classification  for  the purpose of legislation.  Legislation satisfying the test  of classification  founded  on  an  intelligible   differential distinguishing  persons, objects or things grouped  together from others left out of the. group, such differentia  having a  rational relation to the object sought to be achieved  by the  statute, has consistently been regarded as not open  to challenge on the ground of infringing the equality clause of the  constitution.   The  special conditions  in  which  the Railways have to operate and the interests                             797 of  the nation which they serve justify the  classification, assuming  the  argument of classification  to  be  factually correct.   It need hardly be pointed out that the  basis  of classification  need  not  be  expressly  mentioned  by  the impugned  statute: it may be gathered from  the  surrounding circumstances  known  to  or brought to the  notice  of  the Court.               (2)   Rules  148(3)  and Rule  149(3)  are  so               framed as to lead to discriminatory  treatment               of  Railway servants, because by the  exercise               of   the  arbitrary  and  uncontrolled   power               thereby conferred, exercise of which is not to               be  tested by any objective standard,  service               of  any  public  servant  falling  within  the               classes to which they apply may be  terminated               Conferment of such a power leads to denial  of               the equal protection of the laws. Rule  148(3  ) as it stood applied only  to  non-pensionable

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services  and not to pensionable services, and  Rule  149(3) applies  to all railway servants holding  posts  pensionable and non-pensionable.  In dealing with a similar argument  in Satish Chandra Anand’s case(1) in the context of termination of  employment of a servant employed on a contract  for  the duration of an Organisation but whose tenure was governed by the Central Civil Services (Temporary Service) Rules,  1949, Bose, J., observed at p. 659:               "There was no compulsion on the petitioner  to               enter  into  the contract he did.  He  was  as                             free  under  the  law as any  other  p erson  to               accept  or to reject the offer which was  made               to him.  Having accepted, he still has open to               him  all the right and remedies  available  to               other  persons similarly situated  to  enforce               any rights under his contract which have  been               denied to him, assuming there are any, and  to               pursue in the ordinary courts of the land such               remedies  for a breach as are open to  him  to               exactly  the  same  extent  as  other  persons               similarly   situated.    He   has   not   been               discriminated  against  and he  has  not  been               denied the protection               (1)   [1953] S.C.R. 655.               798               of  any laws which others  similarly  situated               could claim." These  observations in my judgment would,  with  appropriate variations,  be  applicable in considering the  validity  of Rules  148(3) & 149(3).  In adjudging ’whether there  is  by the  impugned rules a denial of the equal protection of  the laws, no rational ground of distinction can be found between an  employee who is but for the rule for termination of  em- ployment by notice, by the contract entitled to continue  in employment  for  a  specified  duration,  and  one  who   is appointed to a substantive post till superannuation.  In one case  the employment is. for a period defined or  definable, in the other there is employment till superannuation, and in both  cases liable to be terminated by notice.  If with  his eyes  open,  a  candidate  for  employment  accepts  a  post permanent  or  temporary,  tenure of which  is  governed  by Rules, he cannot after accepting the post seek to avoid  the onerous  terms  of  employment.  This is  not  to  say  that acceptance of covenants or rules which are inconsistent with the  Constitution  is  binding upon the  public  servant  by virtue of his employment.  Such covenants or rules which  in law be regarded as void, would not affect the tenure of  his office. The law which applies to railway servants falling within the class  to which Rules 148(3) and 149(3) apply is  the  same. There  are  no different laws applicable to members  of  the same  class.   The  applicability of the  law  is  also  not governed  by  different considerations.  It is open  to  the appointing authority to terminate appointment of any  person who  falls  within the class.  There  is  therefore  neither denial  of  equality  before the law, nor  denial  of  equal protection  of  the laws.  All  persons  in  non-pensionable services  were  subject  to  Rule  148(3).   There  was   no discrimination  between them: the same law  which  protected other  servants in the same group non-pensionable  servants- protected  the appellants in appeals Nos. 711-714  of  1962, and also provided for determination of their employment. 799 The  Rule,  it  is  true, does  not  expressly  provide  for

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guidance to the authority exercising the power conferred  by Rule  148, but on that account the Rule, cannot be  said  to confer an arbitrary power and be unreasonable, or be in  its operation   unequal.   The  power  is  exercisable  by   the appointing  authority  who normally is, if not  the  General Manager,  a senior officer of the Railways.  In  considering the  validity  of an order of  determination  of  employment under  Rule 148, an assumption that the power may  be  exer- cised  mala  fide and on that ground discrimination  may  be practised is wholly out of place.  Because of the absence of specific  directions in Rule 148 governing the  exercise  of authority   conferred  thereby,  the  power   to   terminate employment   cannot  be  regarded  as  an  arbitrary   power exercisable at the sweet will of the authority, when  having regard to the nature of the employment and the service to be rendered, the importance of the efficient functioning of the rail transport in the scheme of our public economy, and  the status  of the authority invested with the exercise  of  the power, it may reasonably be assumed that the exercise of the power would appropriately be exercised for the protection of public  interest on grounds of  administrative  convenience. Power  to  exercise  discretion is  not  necessarily  to  be assumed  to  be  a power  to  discriminate  unlawfully,  and possibility  of  abuse  of power  will  not  invalidate  the conferment of power.  Conferment of power has necessarily to be  coupled with the duty to exercise it bona fide  and  for effectuating  the  purpose and policy underlying  the  rules which  provide  for the exercise of the power.   If  in  the scheme  of  the  rules,  a  clear  policy  relating  to  the circumstances  in  which  the power is to  be  exercised  is discernible,  the  conferment of power must be  regarded  as made in furtherance of the scheme, and is not open to attack as  infringing  the equality clause.  It may  be  remembered that  the  rules relating to termination  of  employment  of temporary  servants and those on probation, and  even  those relating to compulsory retirement generally do not lay  down any specific directions governing the exercise of the powers 800 conferred  thereby.  The reason is obvious:  the  appointing authority  must in all these cases be left  with  discretion to  determine employment having regard to the exigencies  of the  service, suitability of the employee for absorption  or continuance  in the cadre, and the larger interests  of  the public  being  served  by   retaining  the  public   servant concerned  in  service.   In my  view  Rule  148(3)  cannot, therefore, be regarded as invalid either as infringing  Art. 311(2)  of the Constitution or as infringing Art. 14 of  the Constitution.  For the same reasons Rule 149(3) cannot  also be regarded as invalid. But   the   orders  imposing  upon   the   public   servants determination of employment in exercise of the powers  under Rule  149(3) made applicable to them when prior to the  date on  which  the Rule was framed they were not  applicable  to them  would  be  void  as  infringing  Art.  311(2)  of  the constitution As, however, on this part of the case there has been  no  investigation by the High Court,  I  would  remand appeals  Nos. 837-839 of 1963 to the High Court and  dismiss appeals Nos. 711-714 of 1962.                        ORDER BY COURT In accordance with the opinion of the majority Civil Appeals Nos.  711-713 of 1962 and Civil Appeal No. 714 of  1962  are allowed  with costs.  The writ petitions filed by  the  four appellants  in the three High Courts are granted and  Orders directed to be issued in terms of the prayers made by  them. Civil Appeals Nos. 837-839 of 1963 are dismissed with costs.

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One set of hearing fees in each group. 801