Full Judgment Text
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PETITIONER:
M. RAMANATHA PILLAI
Vs.
RESPONDENT:
THE STATE OF KERALA & ANR.(With connected appeals)
DATE OF JUDGMENT27/08/1973
BENCH:
SIKRI, S.M. (CJ)
BENCH:
SIKRI, S.M. (CJ)
MATHEW, KUTTYIL KURIEN
BEG, M. HAMEEDULLAH
DWIVEDI, S.N.
CHANDRACHUD, Y.V.
CITATION:
1973 AIR 2641 1974 SCR (1) 515
1973 SCC (2) 650
CITATOR INFO :
F 1976 SC1199 (7)
RF 1976 SC2233 (9)
RF 1976 SC2437 (20)
RF 1979 SC 621 (27)
R 1980 SC1255 (18)
F 1980 SC1285 (12,27)
R 1982 SC1107 (30,33)
RF 1989 SC 662 (7)
ACT:
Constitution of India, 1950, Arts.510 and 311-Abolition of
post-Effect of.
HEADNOTE:
On the questions, (i) whether the Government could abolish a
post ill ’the service, and (ii) whats the effect of such
abolition on the rights of the holder of the post at the
time of abolition.
HELD : (1) Every sovereign government has a right to abolish
a post ill government service in the interest and necessity
of internal Administration. The creation and abolition of a
post is dictated by policy, exigencies and administrative
necessity in the interest of general public, and the power
is not related to the doctrine of pleasure. [520D-E]
(2) The protection afforded by Art. 311 of the Constitution
is limited to the imposition of the three major penalties,
namely, dismissal, removal and reduction in rank. These
words are technical words. Every termination of service
cannot amount to dismissal or removal. It is only in cases
where there is a stigma or a loss of benefit that the
removal or dismissal would come under the Article. The
expression "rank" in the Article has reference to a person’s
classification and not to his particular place in the same
cadre in the hierarchy of the service to which he belongs.
A reduction in rank would be a punishment if it carried
penal consequences with it. [521G-522B]
Parshotam Lai Dhingra v. Union of India, [1958] S.C.R. 828;
Satish Chandra Anand v. The Union of India [1953] S.C.R. 655
and Shyam Lal v. State of U.P. and the Union of India,
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[1955] 1 S.C.R. 26, referred to.
(3) Where a person has a substantive appointment to a
permanent post he has a right to hold the post until, under
the rules, he attains the age of superannuation or is
compulsorily retired after having put in the prescribed
number of years’ service or the post is abolished; and his
service cannot be terminated except by way of punishment for
misconduct, negligence, inefficiency or any other dis-
qualification found against him on enquiry after due notice
to him. An appointment to a temporary post for a certain
specified period gives the servant a right to hold the post
for the entire period of his tenure, and his tenure cannot
be put an end to during that period unless he is, by way of
punishment, dismissed or removed from the service. [522E-G]
Parshotam Lai Dhingra v. Union of India, [1958] S.C.R. 828
and Mori Ram Deka etc. v. General Manager, N.E.F. Railways,
Maligaon, Pandu, etc. [1964] 5 S.C.R. 683, referred to.
(4) But a post may be abolished in good faith. The
abolition of the post may have the consequence of
termination of service of a government servant. Such
termination however is not dismissal or removal within the
meaning of Art. 311 of the Constitution. The opportunity of
showing cause against the proposed penalty of dismissal or
removal does not therefore arise in the case of the aboli-
tion of a post. The abolition is not a personal penalty
against the government servant. It is an executive policy
decision. Whether after abolition of the post the
government servant, who was holding the post would or could
be offered any employment under the State. would therefore
be a matter of policy decision of the. Government, because.
the abolition of a post does not confer on the person
holding the abolished post any right to hold the post. The
order abolishing the post may however lose its effective
character if it is established to have been made
arbitrarily, mala fide or as a mask of some penal action
within the meaning of Article 311(2). [522H; 526D-F]
516
(5) The observations in Moti Ram Dek ’a case ([1964] 5
S.C.R. 683), that a person who substantively holds a
permanent post has a right to continue in service, subject
to the rules of superannuation and compulsory retirement and
that ’if for any other reason that right is invaded and he
is asked to leave his service, the termination of his
service must inevitably mean the defeat of his right to
continue in service and as such it, is in the nature of a
penalty and amounts to removal’ are not authority for the,
proposition that abolition of a post in good faith amounts
to removal. The earlier observation in the judgment that a
permanent servant would normally acquire a right to hold the
post until under the rules he attained the age of
superannuation or was compulsorily retired or the post was
abolished shows that the exception of termination as a
result of the abolition of a post was not being considered
when the observation was made. [523A-D]
Champaklal Chimanlal Shah v. The Union of. India [1964] 5
S.C.R. 190, followed.
(6) The Moti Ram Deka case has not abolished the doctrine
of pleasure as embodied in Article 310. That article has
been made subject to Art. 311 where termination is by way of
punishment, and in cases where a fixed term contract is
made. Article 310(2) authorises ’a provision in such-
contract for the payment of compensation to the government
servant if before expiry of that period the post is
abolished or he is required to vacate the post for reasons
not connected with any misconduct. The article furnishes
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intrinsic evidence that the right to abolish the post is a
category of the power exercisable by the Slate. The power
to abolish the post is however inherent in every sovereign
Government and is necessary for the proper functioning and
internal administration of the State and is unaffected by
these limitations on the doctrine of pleasure embodied in
Art. 310. [525G-526D]
(7) No estoppel could arise against the State in regard to
abolition of a post. The courts exclude the operation of
the doctrine of estoppel, when it is found that the
authority against whom estoppel is pleaded has owed a duty
to the public. [526H]
(8) When the exigencies of administration required
alterations in the establishment and creation of a new
department, it is a governmental function’ and a policy
decision, and no question of mala fides arises. [527C-D]
(9) The right to hold a post comes to an end on the
abolition of the post which a government servant holds, and
therefore, he cannot complain of a violation of Arts.
19(1)(f) and 31 of the Constitution when the post is
abolished. [527D-E]
(10) Article 14 also is not attracted when the government
servant cannot complain of any discrimination on the ground
that other government servants, similarly situated had been
allowed to remain in service. [527E. F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 275 of 1971.
Appeal by certificate from the judgment and order dated 6th
August, 1970 of the Kerala High Court in C.P. No. 931 of
1970.
Civil Appeal No. 2231 of 1970
Appeal by certificate from the judgment and order dated
29-1-70 of the High Court of Punjab and Haryana at
Chandigarh in CIVIL Writ No. 3086 of 1968.
Civil Appeal No. 248 of 1971
Appeal by certificate from the Judgment and Order dated
30-9-70 of the High Court of Punjab and Haryana at
Chandigarh in Letters Patent Appeal No. 260 of 1969.
M. K. Ramamurthy, P.K. Pillai and J. Ramamurthi, for the
appellant (In C. A. No. 275/71)
517
A. R. Somanatha Iyer and A.G. Pudissery, for the respondent
CA. No. 275/71).
Gobind Days, M. N. Shroff and B. D. Sharma, for Attorney
General .of India.
R.K. Garg and S.C. Agarwala, for the intervener.
R. K. Garg and S. C. Agarwala, for the appellants (In C. A.
2231/70 and 248/71).
Harbans Singh and R. N. Sachthey, for the respondent (In
C. As. No. 2231/70 and 248/71).
The Judgment of the Court was delivered by
RAY. C. J. Civil Appeal No. 275 of 1971 is by certificate
from the judgment dated 6 August, 1970 of the High Court of
Kerala. The appellant is M. Ramanatha Pillai.
Civil Appeal No. 2231 of 1970 is by certificate from the
judgment dated 29 September, 1970 of the High Court of
Punjab and Haryana. The appellants are S. Ajit Singh and
Jamna Dass Akhtar.
Civil Appeal No. 248 of 1971 is by certificate from the
judgment 30 September, 1970 of the High Court of Punjab and
Harvana. The appellants are seven in number. They are
Kulbhushan Lal, Krishna Lal, Jagdev Singh, Shanti Sarup,
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Dilawar Singh, Ram Asra mid Inder Lal.
The facts in Civil Appeal No. 275 of 1970 are these. A
Vigilance Commission was constituted for the State of Kerala
by an order dated 29 May, 1965. The Government of
Kerala on 26 October, 1965 sanctioned the creation of a
temporary post of Vigilance Commissioner for a period of
three Years from 3 June, 1965. P. D. Nandana Menon assumed
charge as Vigilance Commissioner in that temporary post.
By an order dated 16 April, 1966 the Government of Kerala
defined the constitution, jurisdiction, powers and functions
of the Commission. The Order stated that the Commission
would be beaded by a full time officer designated as
Vigilance Commissioner. The Vigilance Commissioner under the
order was to be appointed by the Governor of the State and
was not to be removed or suspended from office except in the
manner provided for the removal or suspension of the
Chairman of the Kerala Public Service Commission. On 24
January, 1968 the continuance of the temporary post was
sanctioned for a period of one year with effect from 3
june, 1968. Meanwhile P. D. Nandana Menon retired from
the post.
By an order dated 24 September, 1968 the appellant Ramanatha
Pillai was appointed as Vigilance Commissioner on a
consolidated pay of Rs. 2500 per month for a term of three
years from the date of his assuming charge vice P. D.
Nandana Menon retired. By an order dated 2 November. 1968
the Government of Kerala ordered that the Vigilance
Commissioner would hold office for a period of five years
or. till he attained the age of 60 years whichever was
earlier. By an order dated 15 November, 1968 sanction was
accorded to the continuance of the temporary post of the
Vigilance Commissioner till 28 February , 1970.
518
There was an agreement dated 20 December, 1968 between tile
appellant Ramanatha Pillai and the Government of Kerala.
The agreement provided that the term of appointment was to
be for a period of five years from 3 October, 1968 or till
the appellant attained the age of 60 years whichever is
earlier. Ile agreement further stated that the appellant is
not to be removed or suspended from office except in the
manner provided for removal or suspension of the Chairman or
Members of the State Public Service Commission.
By an order dated 24 February 1970 the Government of Kerala
stated that the post of Vigilance Commissioner sanctioned
was temporary and the ... Present sanction for the post of
Vigilance Commissioner will expire on 28 February, 1970 and
that for the staff of the Commission will expire on 28
February, 1971". The order further stated that the
Government having considered all aspects of the matter came
to the conclusion that there was no need to have a Vigilance
Commissioner. The Government, therefore, ordered that the
post of Vigilance Commissioner would be abolished with
effect from 28 February, 1970. The continuance of the staff
of the Commission upto 15 March, 1970 was sanctioned to
enable the office of the Commission to wind up its work. It
may be stated her-- that ill the Government Order dated 3
December, 1969 sanction for the continuance of the staff in
temporary posts from 1 March, 1970 to 28 February, 1971 was
accorded. The affidavit evidence of the Government of
Kerala about the continuance of the temporary posts in the
staff of the Vigilance Commission till 28 February, 1971 is
that the budget for 1970-71 was prepared in advance of the
presentation of the’-proposal in the Legislature. At the
time when the proposals were forwarded by the Administrative
Departments concerned with the establishment of the
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Vigilance Commissioner no decision had been taken regarding
the abolition of the post of the Vigilance Commissioner.
After taking the decision to abolish the Vigilance
Commission the Government considered the feasibility of
omitting the provisions in the budget, but it was found to
be too late to make any changes. The post of Vigilance
Commissioner was sanctioned upto 28 February, 1970..
The appellant Ramanatha Pillai raised three principal
contentions in the High Court. First, that the abolition of
the post of Vigilance Commissioner amounted to removal of
the appellant from service within the meaning of Article 311
of the Constitution. Second, that the abolition of the post
was made mala fide. Third, the appellant entered into an
agreement with the Government and by accepting the offer
changed his position and the State was precluded from
altering the terms of agreement on the principle of
estoppel. The High Court did not accept any of the
contentions. The High Court held that the termination of
service resulting from the abolition of the post would not
attract the provisions of Article 311 of the Constitution.
The High Court however added that this would be so when the
abolition of the post was not a colourable exercise of power
with a view to removing.the incumbent holding the post from
service. The High
519
Court in the facts and circumstances came to the conclusion
that it was. impossible to draw any inference that the
abolition of the post was. with a motive of doing away with
the services of the petitioner. The High Court held that no
estoppel could arise or operate to fetter the powers and
discretion of the Government if in the interest of adminis-
tration and in public interest certain alterations in the
establishment were made and new posts or departments were
created. The reason given by the High Court was that this
would be a governmental function and the court would not sit
in judgment on such action and decide whether the course was
proper or not. The High Court, therefore, held that there
could not be any estoppel against the Government in the
discharge of duty owed to the public. The ratio of the High
Court judgment is that there cannot be an estoppel in
respect of statutory provisions of the governance of the
State Which are made for the benefit of some one other than
the person against whom the estoppel is asserted.
In Civil Appeal No. 2231 of 1970 the questions raised in the
High Court were whether the abolition of the Subordinate
Services Selection Board and the consequential termination
of the services of the Chairman and the Member of the Board
attracted application of Article 311 of the Constitution.
The High Court found that the State Government decided in
public interest to abolish the Board. There were bickerings
among the Members of the Board. The Administrative Reforms
Commission recommended the abolition of the Board. The
appointment of the Members was of a temporary character.
Consequent upon the abolition of the Board there existed no
post on which the appellants could claim appointment.
Civil Appeal No. 248 of 1971 concerns posts held by the
appellants in the Industrial Training Institute in Haryana.
The appellants were permanent employees- Their posts were
abolished with effect from 26 March 1969. The Government
terminated their services upon the abolition of the posts.
The appellants raised the similar question as to whether the
abolition of posts would attract article 311 of the
Constitution. The High Court relied on its decision in
Civil Appeal No. 2231 of 1970 and held that the abolition of
posts did not attract Article 311 of the Constitution.
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The contentions on behalf of the appellant Ramanatha Pillai
were these. First, the order abolishing the post is
vitiated by mala fides of respondent No. 2. Second, the
abolition of the post does not terminate the agreement,
dated 20 December, 1968. Third, the abolition of the post
has the effect of terminating the services of the appellant,
and, therefore, it is invalid by reason of non-compliance
with the provisions of Article 311 of the Constitution.
Fourth, the order of the Government was made without giving
an opportunity to the appellant and thereby violated the
principles of natural justice. It was said that the order
of Government entailing the civil consequences of loss of
service could be made only after observing the principles of
natural justice. Fifth, the principle of estoppel applies
to the case that it was not lawful for the Government to
terminate the services of the appellant.
520
On behalf of the other appellants the contentions are these.
The right to permanent tenure is created by rules or Acts.
The executive decision cannot put an end to these rights.
Service Rules create statutory rights to receive salary and
pension till the- age of superannuation. These statutory
rights constitute property within the meaning of Article
19(1)(f), 31(1) and (2) of the Constitution. The abolition
of a, post is a mere executive decision and it cannot
terminate the statutory tenure of service nor can it affect
fundamental rights without the support of a valid law. The
tenure cannot be taken away by rule or an Act which is
inconsistent with Article 311 (1) and (2) of the
’Constitution, both before and after the amendment of that
Article. After amendment of Article 311(1) a permanent
Government servant holds office during good behaviour and
the doctrine of pleasure stands negatived except to the
extent saved expressly by Article 310. A premature
termination on abolition of post violates Articles 311(2),
19(1) (f) and 31 (1) and also Articles 14 and 16. If
termination of employment after notice is bad a termination
without notice without a valid rule is worse.
The first question which falls for determination is whether
the Government has a right to abolish a post in the service.
The power to create or abolish a post is not related to the
doctrine of pleasure. It is a matter of governmental
policy. Every sovereign Government has this power in the
interest and necessity of internal administration. The
creation or abolition of post is dictated by policy
decision, exigencies of circumstances and administrative
necessity. The creation, the continuance and the abolition
of post are all decided by the Government in the interest of
administration and general public.
The next question is whether abolition of post is dismissal
or removal within The meaning of Article 311. This question
has directly not come up for decision in this Court. There
are however observations on this aspect in three decisions
of this Court. These are Parshotam Lal Dhingra v. Union of
India [1958] S.C.R. 828: Champaklal Chimanlal Shah v. The
Union of India [1964] 5 S.C.R. 190 and Moti Ram Deka etc. v.
General Manager, N.E.F. Railways, Maligaon, Pandu, etc.
[1964] 5 S.C.R. 683.
Article 311 as it stood prior to the Constitution Fifteenth
Amendment Act., 1963 enacted that no person as mentioned in
Article 31 1 (1) shall be dismissed or removed or reduced in
rank until he has been given a reasonable opportunity of
showing cause against the action proposed to be taken in
regard to him. After the Constitution Fifteenth Amendment
Act, 1963 Article 311 states that no person mentioned in
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Article 311 (1) shall be dismissed or removed or reduced in
rank except after an enquiry in which he has been informed
of all the charges against him and giving a reasonable
opportunity of being heard in respect of those charges.
Further, where it is Proposed, after such enquiry, to impose
on him any such penalty of dismissal, removal or reduction
in rank he has to be riven an opportunity of making repre-
sentation to the penalty proposed.
521
Article 309 provides that subject to the provisions of the
Constitution, Acts of the appropriate Legislature may
regulate the recruitment and conditions of service of
persons appointed, to public services and posts in
connection with the affairs of the Union or of any State.
Therefore, Acts in respect of terms and conditions of
service of persons are contemplated. Such Acts of
Legislature must however be subject to the provisions of the
Constitution. This attracts Article 310(1). The proviso to
Article 309 makes it competent to the President or such
person as he may direct-in the case of services and posts in
connection with the affairs of the Union and for the
Governor of a State or such person as he may direct in the
case of services and posts in connection with the affairs of
the State, to make rules regulating the recruitment and the
conditions of service of persons appointed, to such services
and posts under the Union and the State. These Rules and
the exercise of power conferred on the delegate must be
subject to Article 310. The result is that Article 309
cannot impair or affect the pleasure of the President or the
Governor therein specified. Article 309 is, therefore, to
be read subject to Article 310.
Article 310 deals with the tenure of office of persons
serving the Union or the State. Article 310 provides that
such office is held during the pleasure of the President if
the post is under the Union or during the pleasure of the
Governor if the post is under the State. The’ doctrine of
pleasure is thus embodied in Article 310(1). Article 310(2)
deals with cases of persons appointed under contract. This
Article provides that if the President or the Governor deems
it necessary to secure the services of a person having
special qualification, he may appoint him under a special
contract. Such a contract may provide for the payment to
him of compensation if before the expiration of an agreed
period that post is abolished or he is, for reasons not
connected with any misconduct on his part, required to
vacate that post. It is noticeable that Article 310 (1)
begins with a clause "except as expressly provided by this
Constitution". Therefore, the other provisions in the
Constitution which impinge on Article 310 have the effect of
making Article 310 to be subject to those Articles. The
exceptions thus contemplated occur in Articles 124, 148, 218
and 324. Another important exception is Article 311.
Article 311 is however not subject to any other provision of
the Constitution.
When Article 311 states that no person shall be dismissed,
removed or reduced in rank until he has been given a
reasonable opportunity of showing cause against the action
proposed to be taken in regard to him it affords a
protection and security of Government service. Article 311
applies to all Government servants holding permanent,
temporary or officiating post. The protection afforded by
Article 311 is however limited to the imposition of three
major penalties. These are dismissal, removal or reduction
in rank. The words ,’dismissed", "removed" and "reduced in
rank" are technical words. Both in the case of removal or
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dismissal there is a stigma. It also involves loss of
benefit. There may also be an element of personal blame-
worthiness. of the Government servant. Reduction in rank is
also a punishment. The expression "rank" in Article 311(7)
has I reference
522
to a person’s classification and not to his particular place
in the same cadre in the hierarchy of the service to which
he belongs. Merely sending back a servant to his
substantive post has been held not to be a reduction in rank
as a punishment since he had no legal right to continue in
officiating post. The striking cut of a name from the panel
has been held to affect future rights of promotion and to be
a reduction in rank.
A reduction in rank is a punishment if it carries pen
consequences ,With it. In Dhingra case (supra) it has been
said that whether a servant is punished by way of reduction
in rank is to be, found by applying one of the two following
tests : whether the servant has a right to the post or the
rank or whether evil consequences’such as forfeiture of pay
or allowances loss of seniority in his substantive rank,
stoppage ,or postponement of future chances of promotion
follow as a result of the order.
Any and every termination of service cannot amount to
dismissal or removal. A termination of service brought
about by the exercise of ,contractual right is not by itself
dismissal or removal. (See Satish Chandra Anand v. The
Union of India (1953 S.C.R. 665). Again, termination of
service by compulsory retirement in terms of a specific rule
regulating the conditions of service is not tantamount to
infliction of a punishment and does not attract Article
311(2). (See Shyam Lal v. State of U.P. and the Union of
India (1955 1 S.C.R. 26). Similarly the retirement of a
permanent servant on his attaining the age of superannuation
does not amount to his removal within the meaning of Article
311(2). In these cases the termination of service does not
,carry with it ,he penal consequences of loss of pay or
allowances.
The ruling in Dhingra case (supra) is that the protection of
Article 311 is afforded to permanent as well as temporary
posts or officiating in any of them. Where a person has a
substantive appointment to a permanent post he has a right
to hold the post until, under the ,rules, he attains the age
of superannuation or is compulsorily retired after having
put in the prescribed number of years’ service or the post
is abolished and his service cannot be terminated except by
way of punishment for misconduct, negligence, inefficiency
or any other disqualification found against him on enquiry
after due notice to him. This is the statement of law in
Dhingra case as well as Moti Ram Deka case (supra). An
appointment to a temporary post for a certain specified
period gives the servant a right to hold the post for the
entire period of his tenure, and his tenure cannot be put an
end to during that period unless he is, by way of
punishment, dismissed or removed from the service. Except
in these two cases the appointment to a post, permanent or
temporary, on probation or on an officiating basis or a
substantive appointment to a temporary post gives to the
servant so appointed no right to the post and his service
may be terminated unless his service had ripened into what
is, in the service rules, called a quasi-permanent service.
(See Dhingra case (supra) ). A post may be abolished in good
faith. The order abolishing the post may lose its effective
character if it is established to have been made
arbitrarily, malafide or as a mask of some penal action
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within the meaning of Article 311(2).
523
Counsel for the appellants relied on the observations at pp.
706-707 of the Report in Moti-Ram Deka case (supra). The
observations are these. "A person who substantively holds a
permanent post has a right to continue in service, subject,
of course, to the rule of superannuation and the rule as to
compulsory retirement. if for any other reason that right is
invaded and he is asked. to leave his service, the
termination of his service must inevitably mean the defeat
of his right to continue in service and as such, it is in
the nature of a penalty and amounts to removal". These
observations were extracted in support of the contention
that Moti Ram Deka case (supra) is an authority for the
proposition that abolition of post amounts to removal. That
is totally misreading the decision in Moti Ram Deka case
(supra).
The phrase "if for any other reason that right is invaded"
is in juxtaposition to the two exceptions of the rule of
superannuation and the rule of compulsory retirement as
exceptions to the applicability of Article 311. The third
exception of termination as a result of the abolition of a
post was not being considered in that portion of the
judgment in Moti Ram Deka case (supra). Earlier in the
judgment in Moti Ram Deka case (supra) it is said that a
permanent servant would normally acquire a right to hold the
post until under the rules he attained the age of
superannuation or was compulsorily retired or the post was
abolished. The same view is taken in Champaklal case
(supra).
In Moti Ram Deka case (supra) it was said that the statement
of law in Dhingra case (supra) "in the absence of a
contract, express or implied, or service rule the permanent
servant cannot be turned out" would permit the authority to
terminate the service of a permanent servant under terms of
contract or service rules without taking the case under
Article 311 though such termination might amount to removal
or compulsory retirement. Ibis Court in Moti Rant Deka case
(supra) did not agree with this statement of law in Dhingra
case (supra) and laid down the law to be that where a rule
is alleged to violate the constitutional guarantee afforded
by Article 311 (2) the argument of contract between the
parties and its binding character is wholly inappropriate.
The introduction of the two clauses "in the absence of a
contract, expressed or implied, or service rule" in Dhingra.
case (supra) was by reason of consideration of Rule 49 in
that case. Rule 49 spoke of termination of employment of a
prohibationer or a temporary servant or a servant under a
contract not to amount to removal or dismissal within the
meaning of that Rule. That is why these two clauses, it was
pointed out in Moti Ram Deka case, would have no relevance
or application to permanent servants.
In other words, it was said that the two tests laid down in
Dhingra case (supra) first whether the servant had a right
to hold the post and whether he had been visited with evil
consequences of the kind referred to therein were not
cumulative but were alternative. Therefore, if the first
test was satisfied termination of the permanent servant’s
services would amount to removal because his right to the
post is prematurely invaded. This ruling in Moti Ram Deka
(supra) is
524
on the relevant issue as to whether the order of termination
with notice as contemplated in Rule 149 (3) was valid. Such
a rule was found to be a clear infraction of Article 31 1.
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The statement of law in Dhingra case (supra) that in the
absence of a contract, express or implied, or a service
rule, a permanent servant cannot be turned out of his post
unless the post is abolished or unless he is guilty of
misconduct was examined In Moti Ram Deka case.
In Moti Ram Deka case (supra) it has been said that in
regard to temporary servants or servants on probation the
terms of contract or service rules may provide for the
termination of the service on notice of a specified period
or on payment of salary for the said period, and if in
exercise of the power thus conferred the services of a
temporary or probationary servant are terminated,’ it may
not necessarily amount to removal. , If it is shown that the
termination of services is no more than discharge
simpliciter effected by virtue of the contract, or the
relevant rules, Article 311 (2) may not be applicable to
such a case, If, however, the, termination of a temporary
servant’s service in substance represents a penalty imposed
on him or punitive action is taken against him then such
termination would amount to removal and Article 311(2) would
be attracted. The position would be the same in regard to
reduction in rank of an officiating servant.
The termination of the service of a permanent servant on the
terms of a contract or under a service rule will attract
Article 311 if such termination is in the nature of penalty
and amounts to removal. This statement of law in Moti Ram
Deka case (supra) is on the consideration of Rules 148(3)
and 149(3) of the Indian Railway establishment Code, Rule
148(3) deals with non-pensionable railway servants. Rule
149(3) deals with other railway servants. Both the rules
provided that the service of railway servant "shall be
liable to termination on notice on either side of the
periods shown below." Such notice is ’not however required
under those’ Rules 148(3)149(3).in cases of dismissal or
removal as a disciplinary measure after compliance with the
provisions of clause (2)of Article 311 of the Constitution,
retirement on attaining the age of superannuation. and
termination of service due to mental or physical incapacity.
In Moti Ram. Deka case (supra) it was held that neither of
the two rules contemplated an enquiry and in none of the
actual cases there the procedure’ prescribed by Article 311
(2) was followed. In Moti Ram Deka case (supra) Rule 149(3)
which permitted termination for service with notice in
cases of misconduct, to which the second part of the Rule
applied was found to, be unconstitutional.
Rules 148 and 149 in Moti Ram Deka case (supra) referred
to; retirement on superannuation and termination due to
physical or mental incapacity. These considerations were
not fixed on any ad hoc basis and did not involve exercise
of any discretion. these Rules would apply uniformity
servants under those categories.
525
is in this background that the two clauses "in the absence
of a contract expressed or implied, or service rule" in
Dhingar case (supra) were read to support the reasoning that
in regard to a permanent civil servant the termination of
his services otherwise than under the rule of superannuation
or compulsory retirement would amount to removal. Rules 148
and 149 authorised Administration to terminate the services
of all the permanent servants on giving notice. That
clearly amounted to the removal of the servant in question.
Argument was advanced in Moti Ram Deka case (supra) that
Article 310(1) and Article 311 are to be construed in such
manner that the pleasure contemplated by Article 310 (1)
does not become illusory. The contention was that Article
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311 (2) was in the nature of proviso and an exception to
Article 310 and in all cases falling outside the scope of
Article 311 the pleasure of the President or the Governor
must be allowed to rule. This Court in Moti Ram Deka case
(supra) said that the pleasure of the President has to be
exercised in accordance with the requirements of Article
311. Once it is shown that a permanent civil servant is
removed from service Article 311 (2) would apply and Article
310 (1) cannot be invoked independently with the object of
justifying the contravention of the provisions of Article
311(2)
Where it was said in Moti Ram Deka (Supra) that the order of
termination could be effective after complying with Article
311 it was presumed that the provisions of Article 311,
viz., issue of the charge-sheet, enquiry would be applicable
to such cases of termination. With regard to abolition of
post and consequential termination no charges could normally
be framed and no enquiry could be held. Therefore, apart
from the consideration that abolition of post is not
infliction of a penalty like dismissal or removal or
reduction in rank, the framing of charge, the enquiry and
opportunity of showing cause against the imposition of
penalty cannot normally apply to the case of abolition of
post. The discharge of the civil servant on account of
abolition of the post held by him is not an action which is
proposed to be taken as a personal Penalty but it is an
action concerning the policy of the State whether a
permanent post should continue or not.
Counsel on behalf of the appellants contended that the power
to abolish the post is derived from the doctrine of pleasure
as embodied in Article 310 and since Moti Ram Deka case
(supra) has abolished the doctrine of pleasure there would
not exist any power to abolish the post. This contention is
unsound. The power to abolish any civil post is inherent in
every sovereign Government. This power is a policy decision
exercised by the executive. This power is necessary for the
proper functioning and internal administration of the State.
The doctrine of pleasure as embodied in Article 310 has not
been abolished in Moti Ram Deka case (supra). It has been
made subject to Article 311. The doctrine of pleasure
cannot be invoked to terminate the services in contravention
of Article 31 1. Article 310(2) throws a decisive light on
the nature of tenure of office provided by Article 310(1).
Article 310(2) recognises the consequences of service at
pleasure and expressly overrides them in a very limited
class of cases. These cases are where a fixed term con-
526
tract is made. Article 310(2), authorises payment of
compensation to a government servant if before the
expiration of that period the post is abolished or he, for
reasons not connected with any misconduct, is required to
vacate, the post. The termination under Art. 310(2) is in
cases of contract having specific provisions for
compensation. Moti Ram Deka case (supra) has not abolished
the doctrine of pleasure as embodied in Article 310. Article
310 has been made subject to Article 311 where termination
is by way of punishment.
Counsel for the appellants contended that since Article
310(2) refers to the event of abolition of post such right
is limited by provision for compensation and the necessity
of securing the services of the person having special
qualification. It is, therefore, argued on behalf of the
appellants that there was no unconditional right in the
Executive or the legislature to abolish the post. The
concept of contract of payment of compensation is an
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exception to the doctrine of pleasure as embodied in Article
310(1). The reference to abolition of post in Article 310
(2) is in relation to payment of compensation as a provision
in the contract. The provisions of Article 310(2) furnish
intrinsic evidence that the right to abolish the post is a
category of power exercisable by the State. Article 310 is
prefaced by the words "expressly provided by this
Constitution."
The abolition of post may have the consequence of
termination of service of a government servant. Such
termination is not dismissal or removal within the meaning
of Article 311 of the Constitution. The opportunity of
showing cause against the proposed penalty of dismissal or
removal does not therefore arise in the case of abolition of
post. The abolition of post is not a personal penalty
against the government servant. The abolition of post is an
executive policy decision. Whether after abolition of the
post. the Government servant who was holding the post would
or could be offered any employment under the State would
therefore be a matter of policy decision of the Government
because the abolition of post does not confer on the person
holding the abolished post any right to hold the post.
The High Court was correct in holding that no estoppel could
arise against the State in regard to abolition of post. The
appellant Ramanathan Pillai Knew that the post was
temporary. In American Jurisprudence 2d at page 783
paragraph 123 it is stated "Generally, a state is not
subject to an estoppel to the same extent as in an
individual or a private corporation. Otherwise it might be
rendered helpless to assert its powers in government.
Therefore as a general rule the doctrine of estoppel will
not be applied against the state in its governmental, public
or sovereign capacity. An exception how-, ever arises in
the application of estoppel to the State where it is
necessary to prevent fraud or manifest injustice". The
estoppel alleged by the appellant Ramanathan Pillai was on
the ground that he entered into an agreement and thereby
changed his position to his detriment. The High Court
rightly held that the, courts exclude the operation of the
doctrine of estoppel, when it is found that the authority
against whom estoppel is pleaded has owed a duty to the
public against whom the estoppel cannot fairly operate.
527
Counsel for the appellant Ramanathan Pillai repeated in this
Court the allegations of mala fide in regard to the
abolition of post. Broadly the allegations were two fold.
First, that the second respondent made a speech in the
Assembly and made references to the appellant-which would
show that the second respondent was biased and prejudiced
against the appellant. Second, after the abolition of the
Vigilance Commission a new department was created. The
functions of the new department were the same as those of
the Vigilance Commission. Therefore. the object was not to
abolish the Vigilance Commission and only to terminate the
services of the. appellant. The High Court held that the
State entertained doubts as to the advisability of
establishing Vigilance Commission even before it was
constituted in 1965. After the retirement of the first
Vigilance Commissioner P. D. Nandana Menon the question was
again considered. Views were expressed that the Commission
had not worked satisfactorily. The State, therefore, de-
cided to abolish the Vigilance Commission. The High Court
rightly held that the exigencies of administration required
alterations in the establishment and creation of a new
department. This is a governmental function and a policy
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decision. The High Court was correct that there was no
reason to hold that there was colourable exercise of power
by the State.
The right to hold a post comes to an end on the abolition of
the post which a Government servant holds. Therefore. a
Government servant cannot complain of a violation of Article
19(1) (f) and Article 31 of the Constitution when the post
is abolished.
Article 14 is not attracted on the facts of the present
cases. The appellant in C.A. No. 275 of 1971 was appointed
to the ad hoc post of the Vigilance Commissioner. In C.A.
No. 2231 of 1970 the Chairman and the Members of the
Subordinate Services Selection Board were discharged on the
abolition of that Board. Their cases are similar to the
case of the appellant in C.A. No. 275 of 1971. In C.A. No.
248 of 1971 the appellants were permanent teachers of the
Training Institute. Their duty was to coach the trainees in
certain subjects. As the trainees did not offer the
subjects in which the appellants were specialists, they
became surplus. Their cases also resemble the case of the
appellant in C.A. No. 275 of 1971. On the facts of these
cases the appellants cannot complain of discrimination
because it could not be and has not been shown that the
Government servants similarly situated had been allowed to
remain in service.
The High Court was correct in all the three appeals in
coming to a conclusion that the abolition of post does not
attract Article 31 1.
For the aforesaid reasons the appeals fail and are
dismissed. In view of the fact that the High Court did not
make any order as to costs in these appeals each party will
pay and bear his own costs in the three appeals.
V.P.S.
Appeals dismissed.
528