Full Judgment Text
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PETITIONER:
KRISHNA KUMAR
Vs.
RESPONDENT:
DIVISIONAL ASSISTANT ELECTRICAL ENGINEERCENTRAL RAILWAY AND
DATE OF JUDGMENT17/07/1979
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
FAZALALI, SYED MURTAZA
VENKATARAMIAH, E.S. (J)
CITATION:
1979 AIR 1912 1979 SCR (1) 50
1979 SCC (4) 289
ACT:
Constitution of India, 1950, Article 311(1)-Power to
remove an employee rests only with the person who appointed
him-A delegate’s status is not enhanced to that of the
delegator by virtue of delegation of power of appointment-
Date of appointment is the starting point when the
constitutional guarantee under Art. 311(1) becomes available
to the person holding a civil post.
HEADNOTE:
The appellant who was appointed as a Train Lighting
Inspector, Nagpur on July 11, 1974 by the Chief Electrical
Engineer was removed from service by respondent No. 1; the
Divisional Assistant Engineer, Central Railway Nagpur by his
order August 31, 1976. The Writ Petition filed by the
appellant in the Bombay High Court challenging the order of
removal was dismissed summarily by a Division Bench of that
Court.
Allowing the appeal by special leave, the Court
^
HELD: 1. The order of removal is in patent violation of
the provisions of Article 311(1) of the Constitution. [53C]
2. Art. 311(1) of the Constitution provides that no
person who is a member of a civil service of the Union or an
all India service or a civil service of a State or holds a
civil post under the Union or a State shall be dismissed or
removed by an authority subordinate to that by which he was
appointed. [52A]
3. Whether or not an authority is subordinate in rank
to another has to be determined with reference to the state
of affairs existing on the date of appointment. It is at
that point of time that the constitutional guarantee under
Art. 311(1) becomes available to the person holding, for
example, a civil post under the Union Government that he
shall not be removed or dismissed by an authority
subordinate to that which appointed him. [52 F-G]
4. Delegation of the power to make a particular
appointment does not enhance or improve the hierarchical
status of the delegate. An officer subordinate to another
will not become his equal in rank by reason of his coming to
possess some of the powers of that another. [53 A-B]
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The Divisional Assistant Electrical Engineer in the
instant case does not cease to be subordinate in rank to the
Chief Electrical Engineer merely because the latter’s power
to make appointments to certain posts has been delegated to
him the subsequent authorisation made in favour of
respondent, in regard to making appointments to the post
held by the appellant cannot confer upon respondent 1 the
power to remove him. On the date of the
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appellant’s appointment as a Train Lighting Inspector,
respondent 1 had no power to make that appointment. He
cannot have, therefore, the power to remove him. [52H, 53 A-
B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 755 of
1978.
Appeal by Special Leave from the Order dated 21-10-1976
of the Bombay High Court (Nagpur Bench) in S.C.A. No.
4260/76.
R.K. Garg, Edward Faleire, V.J. Francis and D.K. Garg
for the Appellant.
R.P. Bhat and Girish Chandra for the Respondents.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J. The appellant, Krishna Kumar, was
appointed on May 30, 1966 as an Apprentice Mechanic
(Electrical) after selection by the Railway Service
Commission and on the completion of his training period, he
was appointed as a Train Examiner (Electrical). On July 11,
1974 he was appointed as a Train Lighting Inspector, Nagpur
under an order passed by the Chief Electrical Engineer. That
the order of appointment was made by the C.E.E. is
undisputed and indeed there can be no controversy over it.
The list of officer declared to be heads of departments
shows that Chief Electrical Engineers are heads of their
departments. By an order dated August 31, 1976, the
appellant was removed from service by respondent 1, the
Divisional Assistant Engineer, Central Railway, Nagpur.
The appellant thereupon filed a Writ Petition (No. 4260
of 1976) in the Bombay High Court to challenge the order of
removal. A Division Bench of the Nagpur Bench of the High
Court dismissed the Writ Petition summarily on October 21,
1976. Being aggrieved by that order the appellant has filed
this appeal by special leave.
The Special Leave Petition came up before this Court on
February 22, 1978 when a Bench consisting of Justice V.R.
Krishna Iyer and Justice Jaswant Singh adjourned the
petition for four weeks in order to enable the respondents
to file an affidavit stating as to (i) who appointed the
petitioner, with special reference to the designation of the
Officer who made the order of appointment and (ii) who
removed the petitioner from service, with special reference
to the designation of that Officer. Pursuant to that
direction, two affidavits were filed by Shri S.P. Sarathy,
Divisional Assistant Electrical Engineer, Central Railway,
Nagpur. The petitioner filed his rejoinder affidavit on
February 20, 1978. On a consideration of these affidavits
the Court on April 3, 1978 granted special leave to the
appellant to file this appeal.
52
Article 311 (1) of the Constitution provides that no
person who is a member of a civil service of the Union or an
all-India service or a civil service of a State or holds a
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civil post under the Union or a State shall be dismissed or
removed by an authority subordinate to that by which he was
appointed. The simple question for determination is whether,
as alleged by the appellant, he was removed from service by
an authority subordinate to that which had appointed him.
The relevant facts are but these and these only: The
appellant was appointed as a Train Lighting Inspector under
an order issued by the Chief Electrical Engineer and was
removed from service under an order passed by the Divisional
Assistant Electrical Engineer, Central Railway, Nagpur. The
narrow question, therefore, for consideration is whether the
Divisional Assistant Electrical Engineer is subordinate in
rank to the Chief Electrical Engineer. None of the
affidavits filed by Shri Sarathy, who passed the order of
removal says that the post of Divisional Assistant
Electrical Engineer is equivalent to that of the Chief
Electrical Engineer in the official hierarchy. That the
former is not higher in rank than the latter is self-
evident. In the circumstances, it seems clear that the
appellant was removed from service by an authority which is
subordinate in rank to that by which he was appointed.
In defence of the legality of the order of removal,
counsel for the respondents relies on paragraph 2 of
respondent 1’s affidavit, dated January 7, 1978, wherein he
has stated that the power to make appointments to the post
of the Train Lighting Inspector was delegated to certain
other officers including the Divisional Assistant Electrical
Engineer. It is urged that since the Div. Asstt. Elect.
Engineer has been given the power to make appointments to
the post of the Train Lighting Inspector, he would have the
power to remove any person from that post. We cannot accept
this contention. Whether or not an authority is subordinate
in rank to another has to be determined with reference to
the state of affairs existing on the date of appointment. It
is at that point of time that the constitutional guarantee
under Art. 311 (1) becomes available to the person holding,
for example, a civil post under the Union Government that he
shall not be removed or dismissed by an authority
subordinate to that which appointed him. The subsequent
authorization made in favour of respondent 1 in regard to
making appointments to the post held by the appellant cannot
confer upon respondent 1 the power to remove him. On the
date of the appellant’s appointment as a Train Lighting
Inspector, respondent 1 had no power to make that
appointment. He cannot have, therefore, the power to remove
him.
53
Besides, delegation of the power to make a particular
appointment does not enhance or improve the hierarchical
status of the delegate. An Officer subordinate to another
will not become his equal in rank by reason of his coming to
possess some of the powers of that another. The Divisional
Engineer, in other words, does not cease to be subordinate
in rank to the Chief Electrical Engineer merely because the
latter’s power to make appointments to certain posts has
been delegated to him.
Since the appellant was appointed by the Chief
Electrical Engineer and has been removed from service by an
order passed by respondent 1 who, at any rate, was
subordinate in rank to the Chief Electrical Engineer on the
date of appellant’s appointment, it must be held the
respondent 1 had no power to remove the appellant from
service. The order of removal is in patent violation of the
provisions of Article 311 (1) of the Constitution.
For these reasons we allow the appeal, set aside the
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order passed by the High Court and hold that the order dated
August 31, 1976 passed by respondent 1 removing the
appellant from service is unconstitutional and, therefore,
of no effect. The appellant must accordingly be deemed to
continue in service until, if so advised, the government
takes appropriate steps to bring his service to an end.
Respondents will pay the costs of the appeal to the
appellant.
V.D.K. Appeal allowed.
54