Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
2026 INSC 562
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. OF 2026
[ARISING OUT OF SLP (C) NOS.1377-1380 OF 2021]
BENCY JOHN …APPELLANT
VERSUS
KERALA STATE ELECTRICITY BOARD LTD & ORS. …RESPONDENTS
J U D G M E N T
DIPANKAR DATTA, J.
T HE A PPEALS
1. These appeals by the appellant - Bency John - by special leave, are
unusually directed against multiple orders of a Division Bench of the
High Court of Kerala at Ernakulam.
2. W.A. No.1155 of 2017 (Kerala State Electricity Board Limited & ors. v.
D. Vishnu Nampoothiri) was allowed by the Division Bench vide a short
th
order dated 19 August, 2019 spread over 3 (three) pages containing
th
only 5 (five) paragraphs. The judgment and order dated 8 February,
Signature Not Verified
2017 of the Single Judge in W.P. (C) No.13862 of 2014 was set aside.
Digitally signed by
JATINDER KAUR
Date: 2026.05.26
18:39:04 IST
Reason:
th
On the same day, i.e., 19 August, 2019, the Division Bench dismissed
W.A. No.1895 of 2017 (Kerala State Electricity Board Limited & ors. v.
1
Bency John) by a short two paragraph order, referring to its earlier
order in W.A. No.1155 of 2017. As a result, the judgment and order
st
dated 21 March, 2017 passed by the Single Judge allowing the
appellant’s writ petition [W.P. (C) No.18225 of 2013] stood set aside.
Appellant applied for a review (R.P. No.1095 of 2019) of the order
th
dated 19 August, 2019 whereby the appeal of the Kerala State
1
Electricity Board Limited was allowed. Though not a party to W.A.
No.1155 of 2017, the appellant also applied for a review (R.P. No.280
th
of 2020) of the order dated 19 August, 2019 whereby such appeal
th
stood allowed. By its order dated 6 March, 2020, the Division Bench
dismissed both the review petitions.
3. Thus, these 4 (four) appeals challenge the orders of the Division Bench
allowing W.A. No.1155 of 2017 and W.A. No.1895 of 2017 of the Board
and dismissing R.P. No.1095 of 2019 and R.P. No.280 of 2020 of the
appellant.
4. Dismissal of review petitions do not accord a ground to carry the same
in an appeal. Thus, we shall confine our examination to the validity of
th
the orders of the Division Bench dated 19 August, 2019, allowing the
writ appeals of the Board referred to above.
B RIEF F ACTS
5. The basic facts, lying in a narrow compass, are not in dispute.
1
Board
2
2 th
6. Appellant joined the Indian Railways as a Junior Draftsman on 9
August, 1990. After rendering more than 10 (ten) years of regular
pensionable service with the Central Government, he was relieved on
th
24 February, 2001 to join the Board. He joined as a Sub-Engineer on
th
26 February, 2001.
7. Upon his joining the Board, the Railways remitted a sum of
Rs.2,16,429/- towards pro-rata pension liability against a demand of
Rs.1,50,597/- made by the Board. This was duly recorded in the
appellant’s ‘Service Book’, acknowledging that the service rendered in
the Railways is liable to be reckoned for pension.
th
8. The Board itself, through its order bearing B.O. 2119/96 dated 9
3
January, 1996 , had explicitly provided that "regular pensionable
Central Government Service followed by Board Service" would be
counted for the purpose of "computing qualifying service for
weightage".
9. Further, Long Term Settlements entered into between the Board and its
4 5
employee unions in 2000 and 2007 consistently provided that "former
Government service followed by Board service without break will be
counted for the purpose of computing qualifying service for
weightage."
2
Railways
3
Annexure P-5
4
Annexure P-6
5
Annexure P-10
3
10. Relying on these provisions, the appellant’s prior service in the
Railways was reckoned, and he was granted weightage for pay fixation
and other benefits.
st
11. However, on 1 December, 2012, the Chief Internal Auditor of Board
6
issued a letter objecting to the fixation of pay, cancelling the
weightage granted, and ordering recovery of the alleged excess
amount paid. The sole reason cited was that "Railway Service cannot
be reckoned as a Central Government Service for weightage in pay
revision."
12. Appellant's representations were rejected, compelling him to file
W.P.(C) No.18225/2013 before the High Court. A Single Judge,
following the precedent in the case of another similarly situated
7
employee, D. Vishnu Nampoothiri who had succeeded in W.P.(C) No.
13862/2014, allowed the appellant’s writ petition vide a judgment and
st 8
order dated 21 March, 2017 . The Single Judge held that service in
the Railways is required to be reckoned as Central Government service.
13. The Board challenged both the judgments in writ appeals the outcome
whereof has been noticed in the previous segment. The Division Bench
held that Railway service cannot be reckoned for weightage because
the Central Civil Services (Conduct) Rules, 1964, and the Central Civil
6
Annexure P-13
7
Annexure P-17
8
Annexure P-18
4
Services (Classification, Control and Appeal) Rules, 1965 do not apply
to railway servants, who have their own separate rules.
14. Dismissal of the review petitions filed by the appellant led him to
approach this Court with 4 (four) special leave petitions, out of which
these appeals arise.
A RGUMENTS OF THE APPELLANT
15. Appellant’s learned counsel argued as follows:
15.1 Railways is an integral department of the Central
Government, and its employees are central government
servants.
a. The finding of the High Court is fundamentally flawed and contrary to
the established constitutional and statutory position of the Railways.
The Railways is a department of the Government of India, functioning
directly under the Ministry of Railways. It is not a separate legal entity,
a Public Sector Undertaking, or a statutory corporation. Regular
employees of the Railways are civil servants of the Central Government
and/or hold civil posts under the Government of India, under the
provisions of Article 311 of the Constitution of India. They are also
covered within the meaning of the expression “persons appointed, to
public services and posts in connection with the affairs of the Union”
under Article 309 of the Constitution.
5
b. Statutory Recognition : The Indian Railways Act, 1989, itself defines
"Government railway" as a railway owned by the Central Government
[Section 2(20)] and a "railway servant" as any person employed by the
Central Government or by a railway administration in connection with
the service of a railway [Section 2(34)]. This statutory definition is
unequivocal. Section 2(34) reads as follows:
(34) “railway servant” means any person employed by the Central
Government or by a railway administration in connection with the service
of a railway including member of the Railway Protection Force appointed
under clause ( c ) of sub-section (1) of Section 2 of the Railway Protection
Force Act, 1957 (23 of 1957);
c. UPSC Regulations : The Union Public Service Commission (Exemption
from Consultation) Regulations, 1958, explicitly define "Central Service"
to include "Railway Services". This demonstrates that for the highest
constitutional bodies dealing with public services, Railway Service is
treated as a Central Service.
9
d. Code of Civil Procedure, 1908 : Section 80 of the said code deals
with notices for suits against the Government, carves out a specific
procedure for suits against the Central Government where it relates to a
railway. This provision inherently recognizes the railway as being
synonymous with the Central Government for the purpose of litigation.
e. Central Pay Commissions : Successive Central Pay Commission
reports have consistently treated Railway employees as Central
Government employees. The reports classify employees department-
9
CPC, 1908
6
wise, and the Ministry of Railways is shown as a major department of
the Central Government, accounting for the largest share of civilian
employees.
f. In exercise of the powers conferred by clause (3) of Article 77 of the
Constitution, the President of India has promulgated the Government of
India (Allocation of Business) Rules, 1961. As per Rule (2) of the said
Rules the business of the Government of India shall be transacted in
the Ministries, Departments, Secretariats and Offices specified in the
First Schedule to the Rules. The Ministry of Railways (Rail Mantralaya)
and the Railway Board have been specifically authorised to transact all
matters, including those relating to Railway revenue and expenditure
thereunder.
g. The mere existence of separate service rules viz. the Railway Services
(Conduct) Rules, 1966 is a common feature in large government
departments (e.g., Defence civilians, Foreign Service) and is for
administrative convenience. It does not alter the fundamental status of
the employees as being servants of the Central Government. The High
Court's reliance on this distinction to deny the appellant’s status is an
error apparent on the face of the record.
15.2 Board is bound by its own orders and settlements
a. The action of the Board is in direct contravention of its own binding
orders and settlements. The Board itself has taken a contrary stand:
7
while admitting the previous service rendered by the appellant as a
Central Government employee for the purpose of pension, they have
taken a contrary stand as regards grant of weightage.
b. Board Order being B.O. 2119/96 dated 09.09.1996 is unambiguous. It
allows for the counting of "regular pensionable Central Government
Service" for the purpose of weightage. Appellant’s service in the
Railways was both regular and pensionable, and thus was undoubtedly
Central Government service.
c. The long-term settlements of 2000 and 2007, which are binding
settlements under the Industrial Disputes Act, 1947, reiterate this
position by allowing "Former Government service" to be counted for
weightage.
d. The Board cannot be permitted to resile from its own solemn
commitments made in Board Orders and statutory settlements. The
impugned action of cancelling the benefit is arbitrary, illegal, and a
violation of the principles of promissory estoppel. The Board, having
accepted the pro-rata pension contribution from the Railways, is
estopped from denying the consequential benefits to the appellant.
15.3 The impugned judgment creates an unreasonable and
discriminatory classification.
a. The effect of the impugned order allowing the writ appeals is that an
employee from the Department of Posts, Government of India, would
8
be entitled to weightage, but an employee from the Ministry of
Railways, Government of India, would not be. This creates an artificial
and invidious distinction between two classes of Central Government
employees without any rational basis or nexus with the object sought to
be achieved (i.e., granting benefit for past government service).
b. This classification is arbitrary and violative of the equal protection
clause under Article 14 of the Constitution of India. The High Court
failed to consider this discriminatory effect of its interpretation.
c. It is a settled principle of law that recovery from a retired employee,
especially when the initial payment was not due to any
misrepresentation by the employee, is impermissible in law. The order
to recover alleged excess payments from the appellant, who has since
retired, is harsh, inequitable, and contrary to the law laid down in State
10
of Punjab & Ors vs Rafiq Masih (White Washer) .
d. The judicial precedents in S. Bhaskar Reddy v. Superintendant of
11 12
Police , Union of India v. J.V. Subhaiah and M.M.R. Khan v.
13
Union of India lay indirect references to the judicial proposition that
railway servants are Central Government employees.
10
(2015) 4 SCC 334
11
(2015) 2 SCC 365
12
(1996) 2 SCC 258
13
1990 Supp. SCC 191
9
16. In light of the foregoing submissions, it has been prayed that the
impugned order be set aside and the judgment of the Single Judge
st
dated 21 March, 2017 in W.P.(C) No. 18225/2013 restored.
A RGUMENTS ON BEHALF OF THE R ESPONDENTS
17. Learned counsel for the respondents argued that:
17.1 A Railway Servant is not a ‘Central Government Servant’
within the meaning of the applicable rules
a. The expression ‘Central Government Service’ as employed in Board
th
Order No.2119/96 dated 9 September, 1996, and as clarified by the
th
Order dated 10 March, 1997, refers to Central Government Civil
Service as understood under the Central Civil Services (Conduct)
Rules, 1964, and the Central Civil Services (Classification, Control and
Appeal) Rules.
b. Rule 2(b) of the Central Civil Services (Conduct) Rules, 1964 defines
‘Government Servant’ as:
“Government servant means any person appointed by Government
to any civil service or post in connection with the affairs of the Union
and includes a civilian in a Defence Service”.
c. Further, as per Rule 2(h), ‘Government Servant’ means a person
who :
(i) is a member of a Service or holds a civil post under the Union,
and includes any such person on foreign service or whose services
10
are temporarily placed at the disposal of a State Government, or
a local or other authority;
(ii) is a member of a Service or holds a civil post under a State
Government and whose services are temporarily placed at the
disposal of the Central Government;
(iii) is in the service of a local or other authority and whose services
are temporarily placed at the disposal of the Central Government.
d. A bare perusal of the aforesaid definitions makes it evident that a
“railway servant” does not fall within the definition of ‘Government
Servant’ under the applicable rules. The definitions are exhaustive and
exclusive, being limited only to specific persons appointed by or
serving under the Central or State Governments in the manner
described therein. Railway servants, governed by a separate statutory
framework, are conspicuously absent from these definitions.
e. Section 80 of the CPC, 1908, which refers to Government servants for
the purpose of serving notice before institution of suits, does not
provide a substantive definition of ‘Government Servant’ and merely
enumerates persons to whom notice is to be issued. Reliance on such
a provision for defining the scope of ‘Central Government Service’ for
service benefit purposes is wholly misconceived.
f. Railways is a Public Sector Undertaking under the Central
Government, wherein recruitments are carried out through the Railway
11
Recruitment Board. Employees of Indian Railways are governed by a
separate and distinct statutory framework, namely, the Railway
Services (Conduct) Rules, 1966 and the Indian Railway Establishment
14
Code .
g. Railway service, except for the Railway Inspectorate, is not included in
the list of Central Government Services. Accordingly, railway service
cannot be treated as qualifying service for the purpose of weightage in
pay fixation under the Long-Term Settlement. The Answering
Respondents have consistently maintained this position, and no other
employee’s railway service has ever been considered for weightage
purposes, just as the Railways do not reckon service rendered in
Board for the purpose of granting weightage.
h. Even services rendered under entities such as Kerala State Financial
Enterprise, Kerala Water Authority, and Municipal Service, some of
which are directly under the Government of Kerala, are similarly not
counted for the purpose of weightage in pay revision. This
demonstrates a consistent and non-discriminatory application of the
policy.
17.2 Railway Service may only be counted for pensionary benefit –
not for weightage
14
IREC
12
a. Appellant’s prior railway service has not been disregarded. Under the
applicable Long-Term Settlement and Board Orders, such service may
be reckoned only for pensionary benefits, but cannot be treated as
qualifying service for weightage in pay fixation.
nd
b. Clause 6 under Article IV of the Long-Term Settlement dated 2
August, 1995 provides that only Kerala State Government Service
followed by Board Service without break shall be counted for
computing qualifying service for weightage. The provision does not
extend this benefit to railway service.
th
c. The Board Order dated 9 September, 1996 clarified that regular
pensionable Central Government service followed by Board Service
th
may be counted for weightage; however, the order dated 10 March,
1997 issued by the Chief Personnel Officer specifically excluded
railway service from its scope.
d. In any event, the appellant has already been granted full pensionary
benefits, including credit for his prior service in Indian Railways, upon
his retirement in 2019.
17.3 Appellant cannot place reliance on new documents at the
stage of review
a. It is a settled legal position that a party cannot introduce or rely upon
additional evidence at the stage of review. As held in Balai Chandra
13
15
Hazra v. Shewdhari Jadav , review proceedings are not meant to
supplement the record with fresh material.
b. Further, Order XLI Rule 27 of the CPC, 1908 permits additional
evidence only in limited circumstances, none of which apply in the
present case.
18. It was, accordingly, prayed that the appeals be dismissed.
UESTIONS
Q
19. Two questions arise for decision in these appeals. They are:
A. Whether a railway servant ceases to be a member of the civil service of
the Union merely because separate rules govern his service conditions
including recruitment, conduct, control, pension, etc.?
B. Whether the Board, having accepted the pro-rata pension contribution
and having acted upon its own “Board Orders” and settlements for
years, is estopped from unilaterally withdrawing the benefit of
weightage from the appellant?
A NALYSIS
20. Prior to embarking on our task of answering the above questions, it
would be appropriate to consider what the Railways means to India
and its people.
15
(1978) SCR (3) 147
14
21. Railways, by far, is the biggest establishment by every major metric –
personnel, coverage, operational complexity and responsibility. It is the
largest civilian employer. Its reach by way of rail-connectivity extends
to all but two States, viz. Meghalaya and Sikkim. In the process, its
presence is felt in excess of two dozen States and half a dozen Union
Territories. Apart from an administrative spread of 17 zones and 68
divisions under the Ministry of Railways, Government of India, which
requires a huge budgetary allocation in the Union Budget every year,
the Railways has a strategic role to perform. It moves, apart from
people, troops, food grains, coal, petroleum, and other essential
commodities, round the clock. It is also a lifeline during disasters. A
single day strike can paralyse the country.
22. Tackling the Railways is, obviously, no mean job. A normal Ministry
secretariat could not have handled it through conventional
departmental procedure. That is exactly why the Railway Board was
created in pursuance of the Indian Railway Board Act, 1905 and
constituted under the Resolution of the Government of India, Public
th
Works Department No. 256G, dated 18 February, 1905. Section 2
empowered the Central Government to invest the Railway Board with
all or any of the powers of the former under the Indian Railways Act,
1890. With the enactment of the Railways Act, 1989, sub-section (1) of
Section 2-A thereof provides for a body to be constituted known as the
Railway Board to exercise the powers conferred upon, and to perform
15
the functions assigned to it under this Act; and the Railway Board,
earlier constituted, and with its composition as revised from time to
time, shall be deemed to be the Railway Board constituted under this
Act. Sub-section (2) of Section 2-A ordains that the Central
Government may, by notification, invest the Railway Board, either
absolutely or subject to any conditions, with all or any of the powers or
functions of the Central Government under this Act with respect to all
or any Railways. The Railway Board is a specialised technical body
having members for traffic, engineering, electrical, mechanical,
finance, staff, etc., who are all domain experts, quite unlike a normal
ministry. The conferment and exercise of powers and functions of the
Central Government by the Railway Board under the Railways Act,
1989 and the rules framed thereunder, is a continuation of the
arrangement for administrative convenience and efficiency in the
working of the vast railway system in the country which formed the
foundation for the Railway Board’s creation and constitution in 1905.
The Railway Board is, thus, a statutory body exercising governmental
powers because the alternative would be unworkable.
23. Bearing in mind the history behind creation and constitution of the
Railway Board, we need to take a look at the provisions of the
Constitution and the relevant rules now.
24. Article 309 is the source to which all the rules relevant for a decision
on these appeals owe their origin. What does it provide? The
16
substantive provision ordains that subject to the provisions of the
Constitution itself, 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, may be regulated by Acts of the appropriate
Legislature. However, till such time provision in that behalf is made by
or under an Act of the appropriate Legislature under this article, the
proviso empowers the President or the Governor of a State, or such
person as the President/Governor may direct in the case of services
and posts in connection with the affairs of the Union/of the State, as
the case may be, to make rules regulating the recruitment and the
conditions of service of persons appointed to such services and posts;
and any rules so made shall have effect subject to the provisions of
any such Act.
25. Number of rules are in place governing the members of the Central
16
Civil Services , viz. CCS (Conduct) Rules, 1964, CCS (Classification,
Control & Appeal) Rules, 1965, CCS (Pension) Rules, 1972 to name a
few. Preamble to all these rules reflect that the same have been made
in exercise of power under Article 309 of the Constitution.
26. The common thread running through all these rules is that they apply
to all Government servants except, inter alia , any railway servant.
16
CCS
17
27. There are, however, different set of rules similar in content to regulate
conditions of service of railway servants, viz. Railway Services
(Conduct) Rules, 1966, Railway Services (Discipline and Appeal) Rules,
1968, Railway Services (Pension) Rules, 1993, etc. These rules are also
made by the President under Article 309.
28. The Railways Act refers to “government railway” and “non-government
railway”. Section 2(20) and 2(32) of the Railways Act define
“government railway” and “railway administration”, respectively. While
“government railway” means a railway owned by the Central
Government, “railway administration” in relation, inter alia , to a
Government railway, means the General Manager of a Zonal Railway.
Definition of a “railway servant” is found in Section 2(34) in terms
whereof “railway servant” means any person employed by the Central
Government or by a railway administration in connection with the
service of a railway. The remaining part is not relevant for our purpose.
29. Definition of a “railway servant” is also found in Rule 103(33) of the
IREC, 1985 Edition. It means a person who is a member of a service or
holds a post under the administrative control of the Railway Board and
includes a person who holds a post in the Railway Board.
30. If indeed services in the Railways are not to be regarded as services in
connection with the affairs of the Union, and also that railway servants
are not to be considered as appointed to posts in connection with the
18
affairs of the Union, we wonder whether it was at all necessary for the
President to make the aforesaid rules for regulating the conditions of
service of the railway servants.
31. Article 311 of the Constitution may now be adverted to. It provides
safeguards from arbitrary State action. Clause (1) is sufficient for the
present discussion. To the extent relevant, it mandates that no person
who is a member of a civil service of the Union or holds a civil post
under the Union shall be dismissed or removed by an authority
subordinate to that by which he was appointed.
17
32. As held in Parshotam Lal Dhingra v. Union of India , clause (1) of
Article 311 is quite explicit and hardly requires discussion. The scope
and the ambit of that protection are that government servants of the
kinds referred to therein are entitled to the judgment of the authority
by which they were appointed or some authority superior to that
authority and that they should not be dismissed or removed by a lesser
authority in whose judgment they may not have the same faith. The
underlying idea obviously is that a provision like this will ensure to
them a certain amount of security of tenure.
33. It is nobody’s case that a railway servant is not entitled to the
procedural safeguards Article 311 contemplates. Any action dehors
Article 311 adversely impacting a railway servant would be amenable
17
AIR 1958 SC 36
19
18
to challenge before the relevant Central Administrative Tribunal
under the Administrative Tribunals Act, 1985.
34. Section 14 of the AT Act reads as follows:
14. Jurisdiction, powers and authority of the Central
Administrative Tribunal .—(1) Save as otherwise expressly provided in
this Act, the Central Administrative Tribunal shall exercise, on and from
the appointed day, all the jurisdiction, powers and authority exercisable
immediately before that day by all courts (except the Supreme Court in
relation to—
( a ) recruitment, and matters concerning recruitment, to any All-India
Service or to any civil service of the Union or a civil post under the Union
or to a post connected with defence or in the defence services, being, in
either case, a post filled by a civilian;
( b ) all service matters concerning—
( i ) a member of any All-India Service; or
( ii ) a person [not being a member of an All-India Service or a person
referred to in clause ( c )] appointed to any civil service of the Union or
any civil post under the Union; or
( iii ) a civilian [not being a member of an All-India Service or a person
referred to in clause ( c )] appointed to any defence services or a post
connected with defence,
and pertaining to the service of such member, person or civilian, in
connection with the affairs of the Union or of any State or of any local or
other authority within the territory of India or under the control of the
Government of India or of any corporation or society owned or controlled
by the Government;
( c ) all service matters pertaining to service in connection with the affairs
of the Union concerning a person appointed to any service or post
referred to in sub-clause ( ii ) or sub-clause ( iii ) of clause ( b ), being a
person whose services have been placed by a State Government or any
local or other authority or any corporation or society or other body, at
the disposal of the Central Government for such appointment.
Explanation .—For the removal of doubts, it is hereby declared that
references to “Union” in this sub-section shall be construed as including
references also to a Union Territory.
18
Tribunal
20
35. To understand what “service matters” used in Section 14 of the AT Act
means, one has to read Section 3 thereof. Clause (q) of Section 3 of
the AT Act defines “service matters”. Paraphrasing it, to the extent
relevant for the present discussion, “service matters”, in relation to a
person, means all matters relating to the conditions of his service in
connection with the affairs of the Union or under the control of the
Government of India, as respects remuneration (including allowances),
pension and other retirement benefits; tenure including confirmation,
seniority, promotion, reversion, premature retirement and
superannuation; leave of any kind; disciplinary matters; or any other
matter whatsoever.
36. Section 2 of the AT Act specifically posits that the said enactment will
not apply to any member of the naval, military or air forces or of any
other armed forces of the Union; any officer or servant of the Supreme
Court or of any High Court or courts subordinate thereto; any person
appointed to the secretarial staff of either House of Parliament or to
the secretarial staff of any State Legislature or a House thereof or, in
the case of a Union Territory having a Legislature, of that Legislature.
37. Therefore, jurisdiction of the Tribunal is not barred in respect of a
“railway servant”. He is as much a person having locus standi to move
the Tribunal as a Government servant as defined in the CCS Rules
referred to above.
21
38. We may now turn to the decision in in Moti Ram Deka v. North East
19
Frontier Railway . There, several permanent railway employees,
including Moti Ram Deka, were terminated under Rules 148(3) and
149(3) of the IREC, which permitted termination of service by notice
without any departmental inquiry. A seven-Judge Bench of this Court
held that these provisions were unconstitutional because they enabled
the termination of permanent railway employees without affording
them an opportunity to defend themselves, thereby directly violating
the safeguards guaranteed under Article 311(2) of the Constitution.
The mere use of the expression “termination” could not disguise what
was, in substance, a dismissal or removal from service. Constitutional
protection under Article 311 cannot be circumvented by merely
changing the nomenclature of the action. Paragraph 33 of the
judgment is reproduced below:
33. …….. 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.
Therefore we are satisfied that the impugned Rules are invalid inasmuch
as they are inconsistent with the provisions contained in Article 311(2).
The termination of the permanent servants, tenure which is authorised
by the said Rules is, no more and no less than their removal from
service, and so, Article 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 Article 311(2) must be struck down as invalid.
Accordingly, once the Court held that the protection of Article 311 was
available to railway servants notwithstanding the existence of separate
19
AIR 1964 SC 600
22
service rules, it necessarily followed that railway employees were
holders of civil posts under the Union, since Article 311 applies only to
members of the civil services or persons holding civil posts under the
Union or a State. The decision therefore rejected the notion that
permanent railway employees were merely contractual servants whose
services could be terminated at will by notice.
39. Reference may be made at this stage to the decision in State of
20
Assam v. Kanak Chandra Dutta . While considering the question as
to whether a ‘Mauzadar’ is a person holding a civil post under the State
within the meaning of Article 311 of the Constitution and answering in
the affirmative, this Court had the occasion to explain what a civil post
is in the following words:
9. … There is no formal definition of “post” and “civil post”. The sense in
which they are used in the Services Chapter of Part XIV of the
Constitution is indicated by their context and setting. A civil post is
distinguished in Article 310 from a post connected with defence; it is a
post on the civil as distinguished from the defence side of the
administration, an employment in a civil capacity under the Union or a
State. See marginal note to of Article 311. In Article 311, a member of a
civil service of the Union or an all-India service or a civil service of a
State is mentioned separately, and a civil post means a post not
connected with defence outside the regular civil services. A post is a
service or employment. A person holding a post under a State is a person
serving or employed under the State. See the marginal notes to Articles
309, 310 and 311. The heading and the sub-heading of Part XIV and
Chapter I emphasise the element of service. There is a relationship of
master and servant between the State and a person holding a post under
it. The existence of this relationship is indicated by the State’s right to
select and appoint the holder of the post, its right to suspend and dismiss
him, its right to control the manner and method of his doing the work
and the payment by it of his wages or remuneration. A relationship of
master and servant may be established by the presence of all or some of
20
AIR 1967 SC 884
23
these indicia, in conjunction with other circumstances and it is a question
of fact in each case whether there is such a relation between the State
and the alleged holder of a post.
10. In the context of Articles 309, 310 and 311, a post denotes an office.
A person who holds a civil post under a State holds “office” during the
pleasure of the Governor of the State, except as expressly provided by
the Constitution. See Article 310. A post under the State is an office or a
position to which duties in connection with the affairs of the State are
attached, an office or a position to which a person is appointed and which
may exist apart from and independently of the holder of the post. Article
310(2) contemplates that a post may be abolished and a person holding
a post may be required to vacate the post, and it emphasises the idea of
a post existing apart from the holder of the post. A post may be created
before the appointment or simultaneously with it. A post is an
employment, but every employment is not a post. A casual labourer is
not the holder of a post. A post under the State means a post under the
administrative control of the State. The State may create or abolish the
post and may regulate the conditions of service of persons appointed to
the post.
40. The holder of a post undoubtedly on the civil side as distinguished from
the defence side is the holder of a civil post. Holding a post under the
Railway Board does not detract from the position that a railway servant
is a Government servant. Most importantly, all the CCS Rules referred
to in paragraph 25 supra make it clear that the same shall not apply to
any Government servant who is a railway servant. We may aptly refer
21
to Rule 1(3) of the CCS (Conduct) Rules in this behalf.
21
(3) Save as otherwise provided in these rules and subject to the provisions of the Indian
Foreign Service (Conduct and Discipline) Rules, 1961, these rules shall apply to every
person appointed to a civil service or post (including a civilian in Defence Service) in
connection with the affairs of the Union:
Provided that nothing in these rules shall apply to any Government servant who is –
(a) (i) a railway servant as defined in Section 3 of the Indian Railways Act,
1890 (9 of 1890);
(ii) a person holding a post in the Railway Board and is subject to the
Railway Services (Conduct) Rules;
(iii) holding any post under the administrative control of the Railway Board
or of the Financial Commissioner of Railways;
24
41. By the very terms of the proviso, a railway servant is also a
Government servant though it is not the CCS (Conduct) Rules but the
Railway Services (Conduct) Rules that would apply to him.
42. On a conspectus of all these provisions of the Constitution, the AT Act
and subordinate legislation made under Article 309, as well as the
precedents obtaining in the field, our inevitable conclusion is that the
delegation of powers to the Railway Board does not have the effect of
making a railway servant an employee of the Railway Board as distinct
from the Central Government, nor does it alter his status as a member
of the civil service of the Union. A railway servant though appointed in
a Government Railway under rules made exclusively for the Railways in
exercise of powers under the proviso to Article 309 of the Constitution
remains a person holding a civil post in connection with the affairs of
the Union under the administrative control of the Central Government.
The Railway Board functions as the Government of India itself for
railway administration; consequently, service under the Railway Board
in the broader sense is service under the Central Government, and a
railway servant does not cease to be a member of the civil service of
the Central Government merely because his conditions of service are
regulated by rules specific to the Railways.
43. We, thus, answer the first question in the negative.
25
44. Moving on to the second question, the answer cannot but be in the
affirmative.
45. We are surprised that after the appellant was extended benefits in
terms of the “Board Orders”, the same was sought to be withdrawn on
rd
the basis of a purported order of the Chairman of the Board dated 3
June, 2013, preceded by a note of the Chief Internal Auditor of the
st
Board dated 1 December, 2012.
46. The Division Bench committed an error in upholding such order(s)
based on a misconception that since the CCS (Classification, Control &
Appeal) Rules, 1965 and the CCS (Conduct) Rules, 1964 do not apply
to a railway servant, the service put in by the appellant cannot be
reckoned for weightage in the fixation of pay and allowances.
47. The second question is, accordingly, answered.
ELIEF
R
th
48. For the reasons aforesaid, the impugned orders dated 19 August,
2019 allowing W.A. No.1155 of 2017 and W.A. No.1895 of 2017 cannot
be sustained. The same are hereby set aside. The appeals against the
st rd
orders dated 1 December, 2012 and 3 June, 2013 are not
st
entertained. The judgment and order of the Single Judge dated 21
March, 2017 is restored. Appellant shall be entitled to the benefits
26
extended in terms of the “Board Orders” and no benefit accrued in his
favour shall be withdrawn.
C ONCLUSION
49. The appeals stand allowed, without any order for costs.
50. Appellant shall be entitled to all benefits flowing from the judgment of
the Single Judge, since affirmed by us, within a period of three months
from date of production of an authenticated copy of this judgment.
51. If D. Vishnu Nampoothiri has not preferred any appeal against the
order of the High Court dismissing his writ petition, he may approach
the Board for grant of similar relief that was granted to the appellant
based on the order of the Single Judge on his (D. Vishnu Nampoothiri)
writ petition. We hope and trust that in such event, the Board will not
subject D. Vishnu Nampoothiri to any discrimination.
………………………….……………J.
(DIPANKAR DATTA)
…………………..……………………J.
(SATISH CHANDRA SHARMA)
New Delhi;
May 26, 2026.
27