Issue
Facts
Arguments Of Petitioner
Reasoning
Decision
N. Devasahayam
v.
The State Of Madras Represented By The Secretary, Home Dept., And Others
(High Court Of Judicature At Madras)
Writ Appeal No. 74 Of 1957 | 02-05-1958
(Prayer: Appeal (disposed on 2-5-1958), Cl. 15 Letters Patent against the order of Rajagopala Ayyangar, J. dated 12-4-1957 in W. P. No. 487 of 1956 Since reported in 70 L.W. 55
3. presented under Art. 226 of the Constitution to issue a writ of certiorari calling for the records from the Secretary to Govt. of Madras, Home Dept. relating to G. O. Ms. 1008 dated 31st March, 1956 and set aside the said order dated 31st March, 1956 made therein in so far as it relates to the petitioner herein.)
This is an appeal under Cl. 15 of the Letters Patent against the judgment of Rajagopala Ayyangar, J. in W. P. No. 437 of 1956, filed under Art. 226 of the Constitution by the appellant for the issue of a writ of
S. No.Name
1.Sri N. Devasahayam.
2.Sri B. Ratnakar Rai.
3.Sri N. Venkataramana Reddy.
4.Sri K. Sreekumara Menon
5.Sri K. Ramakrishna Chetty.
6.Sri C. Raghavendra Rao.
7.Sri S. Dayashankar.
8.Sri P. Vijayan.
9.Sri D. Krishnan.
2. The appointments have been made on the results of a selection held by the Madras Public Service Commission. The seniority of the candidates inter se will be according to the order in which their names are mentioned in paragraph 1 above.
certiorari or other appropriate writ or direction to set aside the order of the Government of Madras, G. O. Ms. 1008 (Home) dated 31st March, 1956, and to pass such further orders as this Court may deem fit to pass in the circumstances of the case. The petition was filed in the following circumstances:
The appellant as well as certain others were appointed by the Government of Madras as Assistant Commandants, Special Armed Police, Madras in 1948. Their services were utilised during the Hyderabad action and thereafter in connection with the restoration of law and order in Hyderabad. When normal conditions were restored the Government of Madras passed an order G. C. Ms. No. 4242 (Home Department) dated 28th September, 1950 in and by which they appointed certain persons including the appellant who had been serving in the Special Armed Police. Madras, to posts in the Madras Police service. The material portion of the order is as follows:
Under the rule published, in the Public. (Services) Department Notification No. 16 dated 26th January, 1950, at page 272 of Part I of the Fort St. George Gazette dated 7th February, 1950 His Excellency the Governor of Madras hereby relaxes all the relevant provisions of the Madras Police Service Rules in favour of the following Assistant Commandants of the Special Armed Police and Home Guard Commandants and appoints them as Deputy Superintendents of Police on probation:
Post now held.
Asst. Commandant Special Armed
Police
Asst. Commandant Special Armed
Police
Commandant, Home Guards
do
Asst. Commandant Special Armed
Police
do
Commandant. Home Guards
Asst. Commandant Special Armed
Police
do
3. His Excellency the Governor relaxes fundamental R. 31-A and directs that the pay of the nine candidates should be fixed with effect from the date of their appointment in the Madras Police Service inclusive of the period of training in the minimum of the time-scale of pay applicable to Deputy Superintendents of Police and that the difference between the pay so fixed and the pay now drawn by them as Assistant Commandants in the Special Armed Police or Home Guard Commandants as the case may be should be granted as personal pay to be absorbed in the future increments. His Excellency the Governor also directs that the candidates should be allowed to count their service in the Special Armed Police or the Home Guards as the case may be for purposes of increments and seniority in the Madras Police Service.
3.) His Excellency the Governor relaxes fundamental R. 31-A and directs that the pay of the nine candidates should be fixed with effect from the date of their appointment in the Madras Police Service inclusive of the period of training in the minimum of the time-scale of pay applicable to Deputy Superintendents of Police and that the difference between the pay so fixed and the pay now drawn by them as Assistant Commandants in the Special Armed Police or Home Guard Commandants as the case may be should be granted as personal pay to be absorbed in the future increments. His Excellency the Governor also directs that the candidates should be allowed to count their service in the Special Armed Police or the Home Guards as the case may be for purposes of increments and seniority in the Madras Police Service
6.) The following notification will be published in the Fort St. George Gazette:
Notification.
His Excellency the Governor of Madras hereby appoints Sri N. Devasahayam, Sri B. Ratnakar, Sri M. Venkataramana Reddy, Sri K. Sreekumara Menon, Sri K. Ramakrishna Chetty, Sri C. Raghavendra Rao, Sri S. Dayashankar, Sri P. Vijayan and Sri D. Krishnan, as
S. No.Name
1.Sri N. Devasahayam.
2.Sri B. Ratnakar Rai.
3.Sri M. Venkataramana Reddy.
4.Sri K. Sreekumara Menon
5.Sri K. Ramakrishna Chetty.
6.Sri C. Raghavendra Rao.
7.Sri S. Dayashankar.
8.Sri P. Vijayan.
9.Sri D. Krishnan.
It was ordered in that G.O., that the above candidates should be allowed to count their service in the Special armed police or Home Guards as the case may be for purposes of increments and seniority in the Madras Police Service. Of the above nine Deputy Superintendents of Police the following three have since been allotted to Andhra State namely;
1. Sri N. Venkataramana Reddy
2. Sri K. Ramakrishna Chetty
3. Sri C. Raghavendra Rao
The remaining six are in the Madras State. In pursuance of the orders fixing the seniority by counting past service in the Special Armed Police and Home Guards, these Deputy Superintendents of Police were ranked higher in the list of permanent Deputy Superintendents of Police than those appointed to the service by direct recruitment during the years 1948 to 1950.
2. Sri P. Paramaguru, Sri K. Balakrishnan, Sri C. Thangayyan, Sri S. Falanivelu and Sri K. Chanthamarai, Deputy Superintendents of Police, appointed by direct recruitment in January 1949 and May 1950 and Sri S. T. Tiruchitrambalam, Deputy Superintendent of Police appointed by direct recruitment in January 1949 against a war vacancy have now made representations to the following effect:
(i) that when even war service was not counted for purpose of fixation of senio-Deputy Superintendents of Police on probation.
The appellants name is first in the list. In accordance with the said order the appellant was assigned a proper place in the Madras Police list. After an elapse of more than live years the Government of Madras passed another order, G. O. Ms. No. 1008 (Home Department) dated the 31st March 1956. As the writ petition was filed to quash this order it is necessary to quote it in full. It runs thus:
Order : In G. O. Ms. No. 4242, Homo dated 28th September, 1950, the Government relaxed all relevant provisions of the Madras Police Service Rules in favour of the following nine Special Armed Police Assistant Commandant Home Guard commandants and appointed them as Deputy Superintendents of Police on probation.
Post held prior to appointment as Deputy Superintendent of Police.
Asst. Commandant, Spl. Armed Police.
do
Commandant, Home Guards,
do
Asst. Commandant, Spl. Armed Police.
do
Commandant, Home Guards.
Asst. Commandant, Spl. Armed Police.
do
rity of the Deputy Superintendents of Police who were recruited against vacancies reserved for war service candidates there is no justification at all for allowing the temporary service in the Special Armed Police and Home Guards which are not governed by any service rule to so count to the detriment of regularly recruited candidates.
(ii) that seniority of a person shall be determined by the date of his first appointment to such service class, category or grade and there is no indication in the rule that seniority could be fixed in any other manner and with reference to the above rule, those appointed as Deputy Superintendents of Police from among Home Guards and Special Armed Police should also take their seniority only from the date on which they were appointed to the order of Deputy Superintendents of Police.
(iii) the relaxation of the rule, made in favour of the Special Armed Police and Home Guard officers for purposes of giving them a higher seniority to the detriment of other officers regularly recruited is in itself not in accordance with the spirit of the rule issued in G. O. No. 400 Public (Services) dated 26th January 1950 that it is against justice and equity and therefore illegal.
The Government have carefully considered the above representations. They observe that the Special Armed Police and Home Guards being striking forces had practically very little in common with the regular police, that they were semi-military in character and war service itself was not given any weightage for purpose of fixing seniority of those recruited to war reserved vacancies in the State services including the Madras Police Service, there was no justification to count the temporary service in the Special Armed Police and Home Guards for purpose of determining the seniority in the Madras Police Service, Further the fact that the fixation of seniority of Deputy Superintendents of Police appointed from among the Assistant Commandants, Special Armed Police and Commandants Home Guards taking into account their temporary service in those organisations would adversely affect the Deputy Superintendents of Police who were appointed regularly to the service earlier by direct recruitment was also not specifically considered in 1950, The Government further observe that the fixation of seniority in the Madras Public Service on the basis of service rendered in a capacity other than as Deputy Superintendents of Police cannot also he justified in equity. The Government, therefore, now direct that orders in G. O. Ms. 4242 Home dated 28th February 1950 in so far as they relate to seniority of the Deputy Superintendents of police appointed in that G. O. be cancelled and that the seniority inter se of the Deputy Superintendents of Police who were recruited direct and those appointed from among Assistant Commandants, Special Armed Police Home Guards Commandants to be reckoned strictly in accordance with the dates of their first appointment to the Madras Police Service, The relative ranking already fixed in cases where appointments of two or more officers were ordered simultaneously should, however, continue to be maintained.
The Inspector General is requested to inform the petitioners accordingly.
Admittedly this order was passed without notice to the appellant and without hearing him. The appellant stated that he was most materially injured by the said order as it destroyed substantially the prospects of his promotion. The appellant by reason of that order lost his rank by merely fifteen places and there was every likelihood of the appellant not having any chance of promotion during his entire career. In the affidavit filed by him in support of his petition the petitioner (appellant) attacked the order of the Government on the merits. He submitted that the Government were erroneous in certain observations made by them. He prayed in the circumstances that this Court may be pleased to set aside the said order as
illegal, invalid and imoperative as it brings about a reduction in rank, inflicts a penalty although not so called, deprives the petitioner of a right which accrued and became vested more than five years ago and alters conditions or terms on the basis of which his appointment was made.
In the counter affidavit filed on behalf of the State the correctness and the equitable nature of the order in question was maintained. It was further stated that the question whether service in the Special Armed Police or Home Guards can be counted for seniority when they were recruited into the police service was essentially one of policy and it was to be decided by the Government with reference to the character of the work in the Special Armed Police or Home Guards and the manner in which it would affect persons already in the parent service. On the question of legality of the procedure it was stated that Art. 311 of the Constitution would not apply to the case as there had been no reduction in the rank of the appellant as Deputy Superintendent of Police and what had been done was only refixation of the petitioners place in the rank of the Deputy Superintendents of Police and that the question of fixing seniority inter se between officers in service is purely an administrative matter and that it was not the practice of the Government in issuing genera] instructions relating to fixation of seniority to issue notice to all the officers. On an application filed by them, some of the officers who had benefited by the order sought to be quashed in the matter of seniority were added as respondents to the writ petition. In an affidavit filed by the appellant in the said application for impleading of parties he referred to an order of the Government passed subsequent to the filing of the writ petition, namely, G.O.Ms. No. 1496, Home Department, dated 18th May 1956. As reliance was placed on this order by the learned Counsel for the appellant during the course of his arguments it is useful to set out its terms:
The Government accept the proposal of the Inspector General of Police, and direct
(i) that the service in the Special Armed Police which was actually rendered by those Special Armed Police personnel who were discharged for want of vacancies as a result of the disbandment of the force ordered in G. O. Ms. No. 3101 Home dated 25th August 1952 and later reappointed in the Special Armed Police Malabar Special Police, or the District Police should be recognised;
(ii) that the total service of such personnel should be reduced by the period of break in service:
(iii) that the rule issued in G. O. Ms. No. 920, Home dated 19th March 1953 should be allowed to stand so as to enable the Special Armed Police personnel concerned to take seniority with reference to the date of first appointment to the respective categories on reappointment in the Special Armed Police, Malabar Police and District Police as the case may be.
The appellants petition was heard by Rajagopala Aiyangar J. along with three other petitions because they raised common questions relating to seniority in the State services. The learned Judge held that Art. 311 (2) of the Constitution could only be attracted to a case when there has been a reduction in rank as punishment indicted on account of some conduct of the officer and would not apply to a case where there has been a loss of seniority by readjustment. There was, therefore, no violation of the provisions of Art. 311 (2) of the Constitution. The learned Judge further held that a mere violation of a statutory rule in relation to conditions of service, assuming there was such a violation, cannot give rise to a claim for redress by the issue of a prerogative writ. The learned Judge did not deal with the merits of the order of the Government, that is to say, whether the order of the Government was just and equitable obviously because it would not be open to this Court in a petition filed under Art. 226 of the Constitution to decide whether the order of the Government is erroneous or inequitable. The learned Judge, therefore, dismissed the appellants petition and hence this appeal.
Mr. R. M. Seshadri, learned Counsel for the appellant, contended that Art. 311 (2) of the Constitution applied to the case of the appellant. He relied strongly on the observations of the learned Chief Justice of India in a recent decision of the Supreme Court in P. L. Dhingra v. Union of India A.I.R. 1958 S.C. 36.Several passages from the judgment of the majority delivered by the learned Chief Justice were extensively read before us, special emphasis being laid on particular passages by Mr. Seshadri and the learned Advocate General. The argument in brief of Mr. Seshadri was that the very fact that the appellant had lost his place in the list of seniority amounted in law to a reduction in rank by way of punishment and, therefore, Art. 311 (2) of the Constitution would apply. Before dealing with the passages relied on by the learned Counsel it is essential to bear in mind the facts of the case before the Supreme Court and the actual decision of the Court. If this is not borne in mind there is the danger of reading certain passages of the judgment torn out of their context in such a way as was never contemplated by the learned Chief Justice.
The facts of that case were shortly as follows: One Parshotam Lal Dhingra joined the railway service as signaller in 192
4. Eventually he was promoted as Chief Controller in 1950. His post was in Class 111 service. On 31st March, 1951, seven candidates including Dhingra appeared before a selection board constituted for the purpose of selecting a candidate for the post of Assistant Superintendent, Railway Telegraphs which was a gazetted post in Class II Officers cadre. Dhingra was selected out of the seven candidates for this post. On 2nd July 1951, he was appointed to efficiate in Class II service as Assistant Superintendent, Railway Telegraphs, Headquarters Office vice Mr. Sahu Ram whose term of temporary re-employment expired on the afternoon of 3rd July 1951. Dhingra joined his new post on 3rd July 1951. Subsequently it appears that some adverse remarks were made against him in his confidential report by his superior officer. Eventually the General Manager made the following remarks on his file:
I am disappointed to read these reports. He should revert as a subordinate till he makes good the short-comings noticed in this chance of his as an officer.
On 19th August 1953, by an order of the General Manager one B. N. Chopra was appointed to officiate in Class II Service as Assistant Signal and tele-communication engineer vice Dhingra who on relief reverted to Class III appointment. Thereupon Dhingra filed a petition under Art. 226 of the Constitution to quash the said order. The main ground on which the writ was sought was that the procedure contemplated in Art. 311 (2) of the Constitution had not been followed and that he had been reduced in rank without being given an opportunity of showing cause against the action proposed to be taken in regard to him. The question which fell for decision was whether the order passed by the General Manager on 18th August 1953 amounted to a reduction in rank within the meaning of Art. 311 (2) of the Constitution for it did then the order must be held to be invalid as the requirements of that Article had admittedly not been complied with. It was held by the Supreme Court by a majority, Bose, J., dissenting, that as Dhingra was appointed to a higher post on an officiating basis he had no right to continue in that post and therefore his reversion did not operate as forfeiture of any right and could not be described as reduction in rank by way of punishment and that the provisions of Art. 311 (2) of the Constitution were not, therefore, attracted to the case. The concluding portion of the judgment of the learned Chief Justice runs thus:
Applying the principles discussed above it is quite clear that the petitioner before us was appointed to the higher post on an officiating basis, that is to say, he was appointed to officiate in that post which according to the Indian Railway Code, R. 2003 (19) corresponding to F.B. 9 (19) means that he was appointed only to perform the duties of that post.
He had no right to continue in that post and under the general law the implied term of such appointment was that it was terminable at any time on reasonable notice by the Government and, therefore, his reduction did not operate as a forfeiture of any right and could not be described as reduction in rank by way of punishment. Nor did this reduction under Note 1 to R. 1702 amount to his dismissal or removal. Further, it is quite clear from the orders passed by the General Manager that it did not entail the forfeiture of his chances of future promotion or affect his seniority in his substantive post. In these circumstances, there is no escape from the conclusion that the petitioner was not reduced in rank by way of punishment and therefore the provisions of Art. 311 (2) do not come into play at all. In this view of the matter, the petitioner cannot complain that the requirements of Art. 311 (2) were not complied with for those requirements never applied to him,
What was decided in that case is this: If an officer serving in Class III is appointed temporarily to officiate in a post in Class II until further orders and not for any fixed period a subsequent order reverting him to his previous substantive post in Class III is not a reduction in rank by way of punishment. In understanding properly the passages in the judgment of the learned Chief Justice which were relied on by Mr. Seshadri one important fact should not be overlooked. The reason for reverting Dhing ra to his substantive post was his inefficiency and short-comings. In the opening paragraphs of the learned Chief Justices judgment this is referred to pointedly. The remarks of the General Manager which are quoted by his Lordship, namely, He should revert as a subordinate till he makes good the short-comings noticed in this chance of his as officer, leave no room for doubt in this matter. Now the question before the Court was whether for his short-comings he was punished by being reverted to his sub stantive post. There was in one sense a reduction in rank because he was officiating in a higher post and was reverted to his substantive lower post. But he had no right to continue in the officiating post and in the words of the learned Chief Justice,
If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment.
Immediately the learned Chief Justice goes on to say that there may be an order of reduction which may be in the nature of punishment. That would be so if it is not a mere reduction but there are also penal consequences like forfeiture of his pay or allowances or loss of his seniority in his substantive rank or stoppage or postponement of his future chances of promotion. In the very case before the Supreme Court if Dhingra had not been merely reverted to his substantive post in Class III but his seniority had been affected by placing him, say ten places lower than the place which he occupied in the list of seniority in his substantive post then undoubtedly it would have been a case of punishment and Art. 311 (2) of the Constitution would at once be attracted. The ratio decidendi of this decision appears to us to be only this, that the reversion of an officer officiating in a higher grade to his substantive post in the lower grade is per se not a punishment though the motive for such reversion may be misconduct, negligence, inefficiency or other disqualification.
In our opinion, neither the decision of the Supreme Court in Dhingras case , nor any of the passages in the judgment of my Lord the Chief Justices has any application to the facts of the present case. Neither can support the contention that a mere loss of seniority which results from a re-adjustment and refixing of seniority inter se between certain officers in a service would amount to a reduction in rank so as to attract the application of Art. 311 (2) of the Constitution. If for instance as a consequence of the re-organisation of the States certain officers who had been serving in an adjoining State are allotted to a particular State and such officers are placed above the officers already serving in a particular cadre in that State thus affecting their seniority and chances of promotion it cannot be said that there has been a reduction in rank so as to attract the operation of Art. 311 (2) of the Constitution, Indeed it will be ridiculous to follow the procedure laid down in that provision.
In the case before us there has been no reduction in rank due to any alleged act or misconduct on the part of the officer for which he was penalised. It is entirely due to extraneous circumstances unconnected with his conduct. An of officer may lose his seniority owing to the revision of the seniority rules or because, as for instance just mentioned, another officer is transferred to the cadre in which he is, from elsewhere and placed above him. It may be that owing to revision of the rules the status of a post held by an officer: might be reduced or by the creation of a higher grade. In all such cases there is no reduction in rank of a penal nature. Therefore Art. 311 (2) of the Constitution can have no application to those cases.
Art. 311 (2) provides that before a civil servant is reduced in rank, he should be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. This language is singularly inappropriate to the case of a person like the appellant. There was no question at any time of any action proposed to be taken in regard to him personally for any act done by him or for any conduct on his part. In 1950 certain rules of the Madras Police Service were relaxed by the Government in the case of the appellant and certain other persons who had been serving in the Special Armed Police and Home Guards. In 1956 the Government cancelled their order of 1950 because of legal and equitable considerations and they directed that the seniority inter Se of the Deputy Superintendents of Police who were recruited direct and those appointed from among Assistant Commandants, Special Armed Police and Home Guards should be reckoned strictly in accordance with the dates of their first appointment to the Madras Police Service. As a result of this general order which directed refixing of seniority the appellant lost the seniority which he enjoyed under the Government Order of 1950. We have no hesitation in holding that Art. 311(2) was never intended to apply to such a case as this.
The following passages in the judgment of the learned Chief Justice were strongly relied on by Mr. Seshadri, learned Counsel for the appellant:
Shortly put, the principle is that when a servant has a 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.
A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower will ordinarily be a punishment The real test for determining whether the reduction in such cases is o r is not by way of punishment into find out if the order for the reduction also visits the servant with any penal consequences. 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 byway of penalty. The use of the expression terminate, or discharge is not conclusive. In spite of the use of such innocuous expressions, 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 herein before referred to If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the Rules and Art. 311 which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.
The contention of Mr. Seshadri based on these passages was that what attracts Art. 311 (2) is an order of the Government which visits the servant with penal consequences. If there are such consequences as for example, loss of seniority in his sub-stantive rank then per se it would be a case of punishment. The implication of this argument was that if by an order of the Government an officer loses his seniority it does not matter why or in what circumstances the order was passed. It may have nothing to do with any allegation of misconduct, or negligence, inefficiency or other disqualification, In the present case Mr. Seshadri concedes that there was no charge of misconduct or any other similar charge against the appellant but this does not prevent the application of Art. 311 (2) because by reason of the Government Order of 1956 the appellant has come down in his rank with the consequent postponement of his future chances of promotion. So the argument ran.
We are unable to agree with this contention. Before Dhingras case there is a catena of decisions both of the High Courts and of the Supreme Court in which it has been laid down that Art. 311 (2) of the Constitution has application only when any of the punishments mentioned therein, namely, dismissal, removal or reduction in rank is inflicted on an officer on the ground of his misconduct negligence, inefficiency or other similar ground in Amalendu v. Kailas Behari Mathur 56 C. W. N. 846., Bose, J. summed the result of many previous decisions thus:
It has been held by this Court as also by the other High Courts that the words dismissal, removal and reduction in rank in Art. 311 (2) of the Constitution have a technical meaning and it is only when an employee is dismissed, removed or reduced in rank for misconduct or some fault on the part of the employee that Art. 311 (2) of the Constitution is attracted.
In Rabindra v. General Manager S. I. Ry.59 C.W.N. 859., Chakravarthi C.J. discussed fully the meaning to be attached to the words dismissed or removed or reduced in rank and observed at page 864:
There can be no doubt that Art. 311 is concerned only with disciplinary action of certain graver varities that may be taken against civil servants of the Union or a State. It contemplates punishment and lays down what authority shall be competent to impose it and what opportunities the civil servant intended to be punished, must have to defend himself against the proposed penalty. The Article has no concern with any action which may be taken in the normal course, conformably to the nature of the term of an employment and which does not partake of the nature of punishment. The words of the Article are dismissed or removed or reduced in rank. The penal character of the action described by the first two words is patent and the last words reduced in rank also contemplate only such reduction as amounts to a penalty. These words are obviously linked with the third category of the penalties set out in R. 49 of the Civil Service (Classification, Control and Appeal) Rules and the fifth category of those set out in R. 1702 of the Railway Establishment Code, both expressed in the same language: reduction to a lower post or time scale or to a lower stage in a time scale.
Referring to removal the learned Chief Justice observed that the Article does not contemplate every removal from service but only removal on the basis of some imputation or charge
The Supreme Court in Shyamlal v. State of Uttar Pradesh and the Union of India 1955 S.C.R. 26., examined the provisions of Art. 311 (2) from a historical perspective. The judgment of the Court was delivered by Das J. as he then was. The case related to the compulsory retirement of an officer under the Civil Services (Classification, Control and Appeal) Rules. It was held that it did not amount to dismissal or removal from service within the meaning of Art. 311(2) of the Constitution. In the course of the judgment, Das J. observed:
There can be no doubt that removalI am using the term synonymously with dismissalgenerally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the officer, such grounds, therefore, involve the levelling of some imputation or charge against the officer which may conceivably be controverted or explained by the offioer. There is no such element of charge or imputation in the case of compulsory retirement.
In an earlier decision, Satischandra Anand v. Union of India 1953 S.C.R. 655., the Supreme Court had traced the origin of the three categories of dismissal) removal and reduction in rank in R. 49 of the Civil Services (Classification, Control and Appeal) Rules relating to conduct and discipline which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct. They are seven in number and include, censure, suspension, reduction in rank, removal from service and dismissal from service. The Government of India Act, 1935, selected only two of these possible penalties as serious enough to merit statutory safeguards, namely, reduction in rank and dismissal from service. The Constitution has added a third to the list, namely, removal.
In Dhingras Case itself the learned Chief Justice has referred in great detail to the Civil Services (Classification, Control and Appeal) Rules and the provisions in the successive Government of India Acts and arrived at the following conclusion:
The not result is that it is only in those cases where the Government intends to inflict those three forms of punishment that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, 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) and the decisions cited before us and referred to above in so far as they lay down that principle, must be held to be rightly decided.
In a recent case, Khemchand v. Union of India A.I.R. 1958 S.C. 300., the learned Chief Justice again construed Art. 311 (2) in a like manner. Indeed the learned Chief Justice refers to Dhingrs Case and says:
As has been explained by this Court in Parshottamlal Dhingras case the expressions dismissed, removed and reduced in rank are technical words taken from the service rules where they are used to denote three major categories of punishments.
We are, therefore, unable to accept the argument of Mr. Seshadri that the learned Chief Justice in Dhingras Case intended to lay down any thing contrary to the well established construction of Art. 311 (2). All that was decided in that case was that there could be no deduction in rank within the meaning of Art. 311 (2) when an officer holding temporarily an officiating higher post is reverted to his permanent substantive post. We are clearly of opinion that Art. 31 1 (2) has no application to the case before us where there has been no reduction in rank by way of punishment on any ground personal to the appellant.
Mr. Seshadri in passing contended that even apart from Art. 311(2) of the Constitution the appellant was entitled to be heard before the impugned order was passed and that failure to give notice to him and to hear him is a violation of the principles of natural justice and, therefore, the said order of the Government was bad. The Government in passing the order in question was not in any sense exercising judicial functions. The order was a mere reification of seniority on what they considered to be just and equitable grounds. It was in a sense a matter of policy of the Government. No authority was cited to us that, whenever, the Government wanted to change the rules as to seniority or whenever they propose to refix seniority with reference to a particular service on a basis different from what was adopted before, persons in service ilkely to be affected should be given an opportunity of being heard. There is no substance in this contention.
Finally, Mr. Seshadri raised a new point, namely, that there was a contravention of Art. 14 of the Constitution. He admitted that this point was not pressed before Rajagopala Aiyangar J. and that the learned Judges judgment does not deal with it. The contention in based on the provisions of G.O.Ms. No. 1496 (Home Dept.) dated 18th May 1956 passed subsequent to the filing of the writ petition from which this appeal arises, the terms of which we have already set out earlier in this judgment. The argument was that under that Government Order, members of the Special Armed Police who had been discharged for want of vacancies as a result of the disbandment of the force and after a break in ser vice had been reappointed in the Special Armed Police or other branches of the police service were allowed to take seniority with reference to the date of the first appointment to the respective categories on reappointment in the Special Armed Police, Malabar Police and District Police as the case may be, whereas pe rsons like the appellant who had an unbroken length of service have not been given the advantage of seniority. Therefore Mr. Seshadri urged that the Government was guilty of discrimination. We cannot accept this contention. In the first place the order sought to be relied on was passed after the Government Order impugned in this appeal. It was not as if by the same order the Government dealt with one set of persons more favourably than with another set of persons.
Secondly, if Mr. Seshadri is right in saying that the principle underlying the later G. O. Ms. No. 1496 (Home Dept) dated 18th May 1956. if applied to the appellant, would give him the relief, which he wants, there is nothing to prevent the appellant from approaching the Government and convincing them that in fairness and equity the appellant would be entitled to the benefit of that principle. Mr. Seshadri towards the end of his arguments intimated that we need not pronounce finally on this question. We shall, therefore, not deal further with it.
Once a civil servant is unable to invoke the provisions of Art. 311 (1) or (2) of the Constitution in his aid there is no other provision under which he can challenge the validity of the order of the Government which might adversely affect his official career. It is unnecessary to deal with a hypothetical case in which an officer without any ostensible reason and with no rule to support the action is reduced in rank or with a case in which mala fides on the part of the Government is alleged and proved. This is a simple case in which the appellant who had obtained benefit in the way of seniority by the relaxation of rules has been deprived of that benefit by a subsequent cancellation of such relaxation. The appellant cannot claim as of right any particular rank in his substantive cadre. Least of all can he seek to enforce such a right. Vide Dasraj v. State of Punjab A.I.R. 1954 Punj. 134., Ramsaran v. Union of India A.I.R. 1954 Punj. 142., Amahndu v. Kailas Behari Mathur 56 C.W.N. 846., Varadaraja v. State of Travancore-Cochin A.I.R. 1953 Trav. Cochin 150., Raghava Warrier v. State of T. C. A.I.R. 1958 Kerala 79. and C. P. Mary v. State A.I.R. 1958 Kerala 85.
Rajagopala Ayyangar J., was right in holding that the appellant was not entitled to any relief sought by him. The appeal is dismissed.
3. presented under Art. 226 of the Constitution to issue a writ of certiorari calling for the records from the Secretary to Govt. of Madras, Home Dept. relating to G. O. Ms. 1008 dated 31st March, 1956 and set aside the said order dated 31st March, 1956 made therein in so far as it relates to the petitioner herein.)
This is an appeal under Cl. 15 of the Letters Patent against the judgment of Rajagopala Ayyangar, J. in W. P. No. 437 of 1956, filed under Art. 226 of the Constitution by the appellant for the issue of a writ of
S. No.Name
1.Sri N. Devasahayam.
2.Sri B. Ratnakar Rai.
3.Sri N. Venkataramana Reddy.
4.Sri K. Sreekumara Menon
5.Sri K. Ramakrishna Chetty.
6.Sri C. Raghavendra Rao.
7.Sri S. Dayashankar.
8.Sri P. Vijayan.
9.Sri D. Krishnan.
2. The appointments have been made on the results of a selection held by the Madras Public Service Commission. The seniority of the candidates inter se will be according to the order in which their names are mentioned in paragraph 1 above.
certiorari or other appropriate writ or direction to set aside the order of the Government of Madras, G. O. Ms. 1008 (Home) dated 31st March, 1956, and to pass such further orders as this Court may deem fit to pass in the circumstances of the case. The petition was filed in the following circumstances:
The appellant as well as certain others were appointed by the Government of Madras as Assistant Commandants, Special Armed Police, Madras in 1948. Their services were utilised during the Hyderabad action and thereafter in connection with the restoration of law and order in Hyderabad. When normal conditions were restored the Government of Madras passed an order G. C. Ms. No. 4242 (Home Department) dated 28th September, 1950 in and by which they appointed certain persons including the appellant who had been serving in the Special Armed Police. Madras, to posts in the Madras Police service. The material portion of the order is as follows:
Under the rule published, in the Public. (Services) Department Notification No. 16 dated 26th January, 1950, at page 272 of Part I of the Fort St. George Gazette dated 7th February, 1950 His Excellency the Governor of Madras hereby relaxes all the relevant provisions of the Madras Police Service Rules in favour of the following Assistant Commandants of the Special Armed Police and Home Guard Commandants and appoints them as Deputy Superintendents of Police on probation:
Post now held.
Asst. Commandant Special Armed
Police
Asst. Commandant Special Armed
Police
Commandant, Home Guards
do
Asst. Commandant Special Armed
Police
do
Commandant. Home Guards
Asst. Commandant Special Armed
Police
do
3. His Excellency the Governor relaxes fundamental R. 31-A and directs that the pay of the nine candidates should be fixed with effect from the date of their appointment in the Madras Police Service inclusive of the period of training in the minimum of the time-scale of pay applicable to Deputy Superintendents of Police and that the difference between the pay so fixed and the pay now drawn by them as Assistant Commandants in the Special Armed Police or Home Guard Commandants as the case may be should be granted as personal pay to be absorbed in the future increments. His Excellency the Governor also directs that the candidates should be allowed to count their service in the Special Armed Police or the Home Guards as the case may be for purposes of increments and seniority in the Madras Police Service.
3.) His Excellency the Governor relaxes fundamental R. 31-A and directs that the pay of the nine candidates should be fixed with effect from the date of their appointment in the Madras Police Service inclusive of the period of training in the minimum of the time-scale of pay applicable to Deputy Superintendents of Police and that the difference between the pay so fixed and the pay now drawn by them as Assistant Commandants in the Special Armed Police or Home Guard Commandants as the case may be should be granted as personal pay to be absorbed in the future increments. His Excellency the Governor also directs that the candidates should be allowed to count their service in the Special Armed Police or the Home Guards as the case may be for purposes of increments and seniority in the Madras Police Service
6.) The following notification will be published in the Fort St. George Gazette:
Notification.
His Excellency the Governor of Madras hereby appoints Sri N. Devasahayam, Sri B. Ratnakar, Sri M. Venkataramana Reddy, Sri K. Sreekumara Menon, Sri K. Ramakrishna Chetty, Sri C. Raghavendra Rao, Sri S. Dayashankar, Sri P. Vijayan and Sri D. Krishnan, as
S. No.Name
1.Sri N. Devasahayam.
2.Sri B. Ratnakar Rai.
3.Sri M. Venkataramana Reddy.
4.Sri K. Sreekumara Menon
5.Sri K. Ramakrishna Chetty.
6.Sri C. Raghavendra Rao.
7.Sri S. Dayashankar.
8.Sri P. Vijayan.
9.Sri D. Krishnan.
It was ordered in that G.O., that the above candidates should be allowed to count their service in the Special armed police or Home Guards as the case may be for purposes of increments and seniority in the Madras Police Service. Of the above nine Deputy Superintendents of Police the following three have since been allotted to Andhra State namely;
1. Sri N. Venkataramana Reddy
2. Sri K. Ramakrishna Chetty
3. Sri C. Raghavendra Rao
The remaining six are in the Madras State. In pursuance of the orders fixing the seniority by counting past service in the Special Armed Police and Home Guards, these Deputy Superintendents of Police were ranked higher in the list of permanent Deputy Superintendents of Police than those appointed to the service by direct recruitment during the years 1948 to 1950.
2. Sri P. Paramaguru, Sri K. Balakrishnan, Sri C. Thangayyan, Sri S. Falanivelu and Sri K. Chanthamarai, Deputy Superintendents of Police, appointed by direct recruitment in January 1949 and May 1950 and Sri S. T. Tiruchitrambalam, Deputy Superintendent of Police appointed by direct recruitment in January 1949 against a war vacancy have now made representations to the following effect:
(i) that when even war service was not counted for purpose of fixation of senio-Deputy Superintendents of Police on probation.
The appellants name is first in the list. In accordance with the said order the appellant was assigned a proper place in the Madras Police list. After an elapse of more than live years the Government of Madras passed another order, G. O. Ms. No. 1008 (Home Department) dated the 31st March 1956. As the writ petition was filed to quash this order it is necessary to quote it in full. It runs thus:
Order : In G. O. Ms. No. 4242, Homo dated 28th September, 1950, the Government relaxed all relevant provisions of the Madras Police Service Rules in favour of the following nine Special Armed Police Assistant Commandant Home Guard commandants and appointed them as Deputy Superintendents of Police on probation.
Post held prior to appointment as Deputy Superintendent of Police.
Asst. Commandant, Spl. Armed Police.
do
Commandant, Home Guards,
do
Asst. Commandant, Spl. Armed Police.
do
Commandant, Home Guards.
Asst. Commandant, Spl. Armed Police.
do
rity of the Deputy Superintendents of Police who were recruited against vacancies reserved for war service candidates there is no justification at all for allowing the temporary service in the Special Armed Police and Home Guards which are not governed by any service rule to so count to the detriment of regularly recruited candidates.
(ii) that seniority of a person shall be determined by the date of his first appointment to such service class, category or grade and there is no indication in the rule that seniority could be fixed in any other manner and with reference to the above rule, those appointed as Deputy Superintendents of Police from among Home Guards and Special Armed Police should also take their seniority only from the date on which they were appointed to the order of Deputy Superintendents of Police.
(iii) the relaxation of the rule, made in favour of the Special Armed Police and Home Guard officers for purposes of giving them a higher seniority to the detriment of other officers regularly recruited is in itself not in accordance with the spirit of the rule issued in G. O. No. 400 Public (Services) dated 26th January 1950 that it is against justice and equity and therefore illegal.
The Government have carefully considered the above representations. They observe that the Special Armed Police and Home Guards being striking forces had practically very little in common with the regular police, that they were semi-military in character and war service itself was not given any weightage for purpose of fixing seniority of those recruited to war reserved vacancies in the State services including the Madras Police Service, there was no justification to count the temporary service in the Special Armed Police and Home Guards for purpose of determining the seniority in the Madras Police Service, Further the fact that the fixation of seniority of Deputy Superintendents of Police appointed from among the Assistant Commandants, Special Armed Police and Commandants Home Guards taking into account their temporary service in those organisations would adversely affect the Deputy Superintendents of Police who were appointed regularly to the service earlier by direct recruitment was also not specifically considered in 1950, The Government further observe that the fixation of seniority in the Madras Public Service on the basis of service rendered in a capacity other than as Deputy Superintendents of Police cannot also he justified in equity. The Government, therefore, now direct that orders in G. O. Ms. 4242 Home dated 28th February 1950 in so far as they relate to seniority of the Deputy Superintendents of police appointed in that G. O. be cancelled and that the seniority inter se of the Deputy Superintendents of Police who were recruited direct and those appointed from among Assistant Commandants, Special Armed Police Home Guards Commandants to be reckoned strictly in accordance with the dates of their first appointment to the Madras Police Service, The relative ranking already fixed in cases where appointments of two or more officers were ordered simultaneously should, however, continue to be maintained.
The Inspector General is requested to inform the petitioners accordingly.
Admittedly this order was passed without notice to the appellant and without hearing him. The appellant stated that he was most materially injured by the said order as it destroyed substantially the prospects of his promotion. The appellant by reason of that order lost his rank by merely fifteen places and there was every likelihood of the appellant not having any chance of promotion during his entire career. In the affidavit filed by him in support of his petition the petitioner (appellant) attacked the order of the Government on the merits. He submitted that the Government were erroneous in certain observations made by them. He prayed in the circumstances that this Court may be pleased to set aside the said order as
illegal, invalid and imoperative as it brings about a reduction in rank, inflicts a penalty although not so called, deprives the petitioner of a right which accrued and became vested more than five years ago and alters conditions or terms on the basis of which his appointment was made.
In the counter affidavit filed on behalf of the State the correctness and the equitable nature of the order in question was maintained. It was further stated that the question whether service in the Special Armed Police or Home Guards can be counted for seniority when they were recruited into the police service was essentially one of policy and it was to be decided by the Government with reference to the character of the work in the Special Armed Police or Home Guards and the manner in which it would affect persons already in the parent service. On the question of legality of the procedure it was stated that Art. 311 of the Constitution would not apply to the case as there had been no reduction in the rank of the appellant as Deputy Superintendent of Police and what had been done was only refixation of the petitioners place in the rank of the Deputy Superintendents of Police and that the question of fixing seniority inter se between officers in service is purely an administrative matter and that it was not the practice of the Government in issuing genera] instructions relating to fixation of seniority to issue notice to all the officers. On an application filed by them, some of the officers who had benefited by the order sought to be quashed in the matter of seniority were added as respondents to the writ petition. In an affidavit filed by the appellant in the said application for impleading of parties he referred to an order of the Government passed subsequent to the filing of the writ petition, namely, G.O.Ms. No. 1496, Home Department, dated 18th May 1956. As reliance was placed on this order by the learned Counsel for the appellant during the course of his arguments it is useful to set out its terms:
The Government accept the proposal of the Inspector General of Police, and direct
(i) that the service in the Special Armed Police which was actually rendered by those Special Armed Police personnel who were discharged for want of vacancies as a result of the disbandment of the force ordered in G. O. Ms. No. 3101 Home dated 25th August 1952 and later reappointed in the Special Armed Police Malabar Special Police, or the District Police should be recognised;
(ii) that the total service of such personnel should be reduced by the period of break in service:
(iii) that the rule issued in G. O. Ms. No. 920, Home dated 19th March 1953 should be allowed to stand so as to enable the Special Armed Police personnel concerned to take seniority with reference to the date of first appointment to the respective categories on reappointment in the Special Armed Police, Malabar Police and District Police as the case may be.
The appellants petition was heard by Rajagopala Aiyangar J. along with three other petitions because they raised common questions relating to seniority in the State services. The learned Judge held that Art. 311 (2) of the Constitution could only be attracted to a case when there has been a reduction in rank as punishment indicted on account of some conduct of the officer and would not apply to a case where there has been a loss of seniority by readjustment. There was, therefore, no violation of the provisions of Art. 311 (2) of the Constitution. The learned Judge further held that a mere violation of a statutory rule in relation to conditions of service, assuming there was such a violation, cannot give rise to a claim for redress by the issue of a prerogative writ. The learned Judge did not deal with the merits of the order of the Government, that is to say, whether the order of the Government was just and equitable obviously because it would not be open to this Court in a petition filed under Art. 226 of the Constitution to decide whether the order of the Government is erroneous or inequitable. The learned Judge, therefore, dismissed the appellants petition and hence this appeal.
Mr. R. M. Seshadri, learned Counsel for the appellant, contended that Art. 311 (2) of the Constitution applied to the case of the appellant. He relied strongly on the observations of the learned Chief Justice of India in a recent decision of the Supreme Court in P. L. Dhingra v. Union of India A.I.R. 1958 S.C. 36.Several passages from the judgment of the majority delivered by the learned Chief Justice were extensively read before us, special emphasis being laid on particular passages by Mr. Seshadri and the learned Advocate General. The argument in brief of Mr. Seshadri was that the very fact that the appellant had lost his place in the list of seniority amounted in law to a reduction in rank by way of punishment and, therefore, Art. 311 (2) of the Constitution would apply. Before dealing with the passages relied on by the learned Counsel it is essential to bear in mind the facts of the case before the Supreme Court and the actual decision of the Court. If this is not borne in mind there is the danger of reading certain passages of the judgment torn out of their context in such a way as was never contemplated by the learned Chief Justice.
The facts of that case were shortly as follows: One Parshotam Lal Dhingra joined the railway service as signaller in 192
4. Eventually he was promoted as Chief Controller in 1950. His post was in Class 111 service. On 31st March, 1951, seven candidates including Dhingra appeared before a selection board constituted for the purpose of selecting a candidate for the post of Assistant Superintendent, Railway Telegraphs which was a gazetted post in Class II Officers cadre. Dhingra was selected out of the seven candidates for this post. On 2nd July 1951, he was appointed to efficiate in Class II service as Assistant Superintendent, Railway Telegraphs, Headquarters Office vice Mr. Sahu Ram whose term of temporary re-employment expired on the afternoon of 3rd July 1951. Dhingra joined his new post on 3rd July 1951. Subsequently it appears that some adverse remarks were made against him in his confidential report by his superior officer. Eventually the General Manager made the following remarks on his file:
I am disappointed to read these reports. He should revert as a subordinate till he makes good the short-comings noticed in this chance of his as an officer.
On 19th August 1953, by an order of the General Manager one B. N. Chopra was appointed to officiate in Class II Service as Assistant Signal and tele-communication engineer vice Dhingra who on relief reverted to Class III appointment. Thereupon Dhingra filed a petition under Art. 226 of the Constitution to quash the said order. The main ground on which the writ was sought was that the procedure contemplated in Art. 311 (2) of the Constitution had not been followed and that he had been reduced in rank without being given an opportunity of showing cause against the action proposed to be taken in regard to him. The question which fell for decision was whether the order passed by the General Manager on 18th August 1953 amounted to a reduction in rank within the meaning of Art. 311 (2) of the Constitution for it did then the order must be held to be invalid as the requirements of that Article had admittedly not been complied with. It was held by the Supreme Court by a majority, Bose, J., dissenting, that as Dhingra was appointed to a higher post on an officiating basis he had no right to continue in that post and therefore his reversion did not operate as forfeiture of any right and could not be described as reduction in rank by way of punishment and that the provisions of Art. 311 (2) of the Constitution were not, therefore, attracted to the case. The concluding portion of the judgment of the learned Chief Justice runs thus:
Applying the principles discussed above it is quite clear that the petitioner before us was appointed to the higher post on an officiating basis, that is to say, he was appointed to officiate in that post which according to the Indian Railway Code, R. 2003 (19) corresponding to F.B. 9 (19) means that he was appointed only to perform the duties of that post.
He had no right to continue in that post and under the general law the implied term of such appointment was that it was terminable at any time on reasonable notice by the Government and, therefore, his reduction did not operate as a forfeiture of any right and could not be described as reduction in rank by way of punishment. Nor did this reduction under Note 1 to R. 1702 amount to his dismissal or removal. Further, it is quite clear from the orders passed by the General Manager that it did not entail the forfeiture of his chances of future promotion or affect his seniority in his substantive post. In these circumstances, there is no escape from the conclusion that the petitioner was not reduced in rank by way of punishment and therefore the provisions of Art. 311 (2) do not come into play at all. In this view of the matter, the petitioner cannot complain that the requirements of Art. 311 (2) were not complied with for those requirements never applied to him,
What was decided in that case is this: If an officer serving in Class III is appointed temporarily to officiate in a post in Class II until further orders and not for any fixed period a subsequent order reverting him to his previous substantive post in Class III is not a reduction in rank by way of punishment. In understanding properly the passages in the judgment of the learned Chief Justice which were relied on by Mr. Seshadri one important fact should not be overlooked. The reason for reverting Dhing ra to his substantive post was his inefficiency and short-comings. In the opening paragraphs of the learned Chief Justices judgment this is referred to pointedly. The remarks of the General Manager which are quoted by his Lordship, namely, He should revert as a subordinate till he makes good the short-comings noticed in this chance of his as officer, leave no room for doubt in this matter. Now the question before the Court was whether for his short-comings he was punished by being reverted to his sub stantive post. There was in one sense a reduction in rank because he was officiating in a higher post and was reverted to his substantive lower post. But he had no right to continue in the officiating post and in the words of the learned Chief Justice,
If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment.
Immediately the learned Chief Justice goes on to say that there may be an order of reduction which may be in the nature of punishment. That would be so if it is not a mere reduction but there are also penal consequences like forfeiture of his pay or allowances or loss of his seniority in his substantive rank or stoppage or postponement of his future chances of promotion. In the very case before the Supreme Court if Dhingra had not been merely reverted to his substantive post in Class III but his seniority had been affected by placing him, say ten places lower than the place which he occupied in the list of seniority in his substantive post then undoubtedly it would have been a case of punishment and Art. 311 (2) of the Constitution would at once be attracted. The ratio decidendi of this decision appears to us to be only this, that the reversion of an officer officiating in a higher grade to his substantive post in the lower grade is per se not a punishment though the motive for such reversion may be misconduct, negligence, inefficiency or other disqualification.
In our opinion, neither the decision of the Supreme Court in Dhingras case , nor any of the passages in the judgment of my Lord the Chief Justices has any application to the facts of the present case. Neither can support the contention that a mere loss of seniority which results from a re-adjustment and refixing of seniority inter se between certain officers in a service would amount to a reduction in rank so as to attract the application of Art. 311 (2) of the Constitution. If for instance as a consequence of the re-organisation of the States certain officers who had been serving in an adjoining State are allotted to a particular State and such officers are placed above the officers already serving in a particular cadre in that State thus affecting their seniority and chances of promotion it cannot be said that there has been a reduction in rank so as to attract the operation of Art. 311 (2) of the Constitution, Indeed it will be ridiculous to follow the procedure laid down in that provision.
In the case before us there has been no reduction in rank due to any alleged act or misconduct on the part of the officer for which he was penalised. It is entirely due to extraneous circumstances unconnected with his conduct. An of officer may lose his seniority owing to the revision of the seniority rules or because, as for instance just mentioned, another officer is transferred to the cadre in which he is, from elsewhere and placed above him. It may be that owing to revision of the rules the status of a post held by an officer: might be reduced or by the creation of a higher grade. In all such cases there is no reduction in rank of a penal nature. Therefore Art. 311 (2) of the Constitution can have no application to those cases.
Art. 311 (2) provides that before a civil servant is reduced in rank, he should be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. This language is singularly inappropriate to the case of a person like the appellant. There was no question at any time of any action proposed to be taken in regard to him personally for any act done by him or for any conduct on his part. In 1950 certain rules of the Madras Police Service were relaxed by the Government in the case of the appellant and certain other persons who had been serving in the Special Armed Police and Home Guards. In 1956 the Government cancelled their order of 1950 because of legal and equitable considerations and they directed that the seniority inter Se of the Deputy Superintendents of Police who were recruited direct and those appointed from among Assistant Commandants, Special Armed Police and Home Guards should be reckoned strictly in accordance with the dates of their first appointment to the Madras Police Service. As a result of this general order which directed refixing of seniority the appellant lost the seniority which he enjoyed under the Government Order of 1950. We have no hesitation in holding that Art. 311(2) was never intended to apply to such a case as this.
The following passages in the judgment of the learned Chief Justice were strongly relied on by Mr. Seshadri, learned Counsel for the appellant:
Shortly put, the principle is that when a servant has a 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.
A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower will ordinarily be a punishment The real test for determining whether the reduction in such cases is o r is not by way of punishment into find out if the order for the reduction also visits the servant with any penal consequences. 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 byway of penalty. The use of the expression terminate, or discharge is not conclusive. In spite of the use of such innocuous expressions, 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 herein before referred to If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the Rules and Art. 311 which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.
The contention of Mr. Seshadri based on these passages was that what attracts Art. 311 (2) is an order of the Government which visits the servant with penal consequences. If there are such consequences as for example, loss of seniority in his sub-stantive rank then per se it would be a case of punishment. The implication of this argument was that if by an order of the Government an officer loses his seniority it does not matter why or in what circumstances the order was passed. It may have nothing to do with any allegation of misconduct, or negligence, inefficiency or other disqualification, In the present case Mr. Seshadri concedes that there was no charge of misconduct or any other similar charge against the appellant but this does not prevent the application of Art. 311 (2) because by reason of the Government Order of 1956 the appellant has come down in his rank with the consequent postponement of his future chances of promotion. So the argument ran.
We are unable to agree with this contention. Before Dhingras case there is a catena of decisions both of the High Courts and of the Supreme Court in which it has been laid down that Art. 311 (2) of the Constitution has application only when any of the punishments mentioned therein, namely, dismissal, removal or reduction in rank is inflicted on an officer on the ground of his misconduct negligence, inefficiency or other similar ground in Amalendu v. Kailas Behari Mathur 56 C. W. N. 846., Bose, J. summed the result of many previous decisions thus:
It has been held by this Court as also by the other High Courts that the words dismissal, removal and reduction in rank in Art. 311 (2) of the Constitution have a technical meaning and it is only when an employee is dismissed, removed or reduced in rank for misconduct or some fault on the part of the employee that Art. 311 (2) of the Constitution is attracted.
In Rabindra v. General Manager S. I. Ry.59 C.W.N. 859., Chakravarthi C.J. discussed fully the meaning to be attached to the words dismissed or removed or reduced in rank and observed at page 864:
There can be no doubt that Art. 311 is concerned only with disciplinary action of certain graver varities that may be taken against civil servants of the Union or a State. It contemplates punishment and lays down what authority shall be competent to impose it and what opportunities the civil servant intended to be punished, must have to defend himself against the proposed penalty. The Article has no concern with any action which may be taken in the normal course, conformably to the nature of the term of an employment and which does not partake of the nature of punishment. The words of the Article are dismissed or removed or reduced in rank. The penal character of the action described by the first two words is patent and the last words reduced in rank also contemplate only such reduction as amounts to a penalty. These words are obviously linked with the third category of the penalties set out in R. 49 of the Civil Service (Classification, Control and Appeal) Rules and the fifth category of those set out in R. 1702 of the Railway Establishment Code, both expressed in the same language: reduction to a lower post or time scale or to a lower stage in a time scale.
Referring to removal the learned Chief Justice observed that the Article does not contemplate every removal from service but only removal on the basis of some imputation or charge
The Supreme Court in Shyamlal v. State of Uttar Pradesh and the Union of India 1955 S.C.R. 26., examined the provisions of Art. 311 (2) from a historical perspective. The judgment of the Court was delivered by Das J. as he then was. The case related to the compulsory retirement of an officer under the Civil Services (Classification, Control and Appeal) Rules. It was held that it did not amount to dismissal or removal from service within the meaning of Art. 311(2) of the Constitution. In the course of the judgment, Das J. observed:
There can be no doubt that removalI am using the term synonymously with dismissalgenerally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the officer, such grounds, therefore, involve the levelling of some imputation or charge against the officer which may conceivably be controverted or explained by the offioer. There is no such element of charge or imputation in the case of compulsory retirement.
In an earlier decision, Satischandra Anand v. Union of India 1953 S.C.R. 655., the Supreme Court had traced the origin of the three categories of dismissal) removal and reduction in rank in R. 49 of the Civil Services (Classification, Control and Appeal) Rules relating to conduct and discipline which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct. They are seven in number and include, censure, suspension, reduction in rank, removal from service and dismissal from service. The Government of India Act, 1935, selected only two of these possible penalties as serious enough to merit statutory safeguards, namely, reduction in rank and dismissal from service. The Constitution has added a third to the list, namely, removal.
In Dhingras Case itself the learned Chief Justice has referred in great detail to the Civil Services (Classification, Control and Appeal) Rules and the provisions in the successive Government of India Acts and arrived at the following conclusion:
The not result is that it is only in those cases where the Government intends to inflict those three forms of punishment that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, 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) and the decisions cited before us and referred to above in so far as they lay down that principle, must be held to be rightly decided.
In a recent case, Khemchand v. Union of India A.I.R. 1958 S.C. 300., the learned Chief Justice again construed Art. 311 (2) in a like manner. Indeed the learned Chief Justice refers to Dhingrs Case and says:
As has been explained by this Court in Parshottamlal Dhingras case the expressions dismissed, removed and reduced in rank are technical words taken from the service rules where they are used to denote three major categories of punishments.
We are, therefore, unable to accept the argument of Mr. Seshadri that the learned Chief Justice in Dhingras Case intended to lay down any thing contrary to the well established construction of Art. 311 (2). All that was decided in that case was that there could be no deduction in rank within the meaning of Art. 311 (2) when an officer holding temporarily an officiating higher post is reverted to his permanent substantive post. We are clearly of opinion that Art. 31 1 (2) has no application to the case before us where there has been no reduction in rank by way of punishment on any ground personal to the appellant.
Mr. Seshadri in passing contended that even apart from Art. 311(2) of the Constitution the appellant was entitled to be heard before the impugned order was passed and that failure to give notice to him and to hear him is a violation of the principles of natural justice and, therefore, the said order of the Government was bad. The Government in passing the order in question was not in any sense exercising judicial functions. The order was a mere reification of seniority on what they considered to be just and equitable grounds. It was in a sense a matter of policy of the Government. No authority was cited to us that, whenever, the Government wanted to change the rules as to seniority or whenever they propose to refix seniority with reference to a particular service on a basis different from what was adopted before, persons in service ilkely to be affected should be given an opportunity of being heard. There is no substance in this contention.
Finally, Mr. Seshadri raised a new point, namely, that there was a contravention of Art. 14 of the Constitution. He admitted that this point was not pressed before Rajagopala Aiyangar J. and that the learned Judges judgment does not deal with it. The contention in based on the provisions of G.O.Ms. No. 1496 (Home Dept.) dated 18th May 1956 passed subsequent to the filing of the writ petition from which this appeal arises, the terms of which we have already set out earlier in this judgment. The argument was that under that Government Order, members of the Special Armed Police who had been discharged for want of vacancies as a result of the disbandment of the force and after a break in ser vice had been reappointed in the Special Armed Police or other branches of the police service were allowed to take seniority with reference to the date of the first appointment to the respective categories on reappointment in the Special Armed Police, Malabar Police and District Police as the case may be, whereas pe rsons like the appellant who had an unbroken length of service have not been given the advantage of seniority. Therefore Mr. Seshadri urged that the Government was guilty of discrimination. We cannot accept this contention. In the first place the order sought to be relied on was passed after the Government Order impugned in this appeal. It was not as if by the same order the Government dealt with one set of persons more favourably than with another set of persons.
Secondly, if Mr. Seshadri is right in saying that the principle underlying the later G. O. Ms. No. 1496 (Home Dept) dated 18th May 1956. if applied to the appellant, would give him the relief, which he wants, there is nothing to prevent the appellant from approaching the Government and convincing them that in fairness and equity the appellant would be entitled to the benefit of that principle. Mr. Seshadri towards the end of his arguments intimated that we need not pronounce finally on this question. We shall, therefore, not deal further with it.
Once a civil servant is unable to invoke the provisions of Art. 311 (1) or (2) of the Constitution in his aid there is no other provision under which he can challenge the validity of the order of the Government which might adversely affect his official career. It is unnecessary to deal with a hypothetical case in which an officer without any ostensible reason and with no rule to support the action is reduced in rank or with a case in which mala fides on the part of the Government is alleged and proved. This is a simple case in which the appellant who had obtained benefit in the way of seniority by the relaxation of rules has been deprived of that benefit by a subsequent cancellation of such relaxation. The appellant cannot claim as of right any particular rank in his substantive cadre. Least of all can he seek to enforce such a right. Vide Dasraj v. State of Punjab A.I.R. 1954 Punj. 134., Ramsaran v. Union of India A.I.R. 1954 Punj. 142., Amahndu v. Kailas Behari Mathur 56 C.W.N. 846., Varadaraja v. State of Travancore-Cochin A.I.R. 1953 Trav. Cochin 150., Raghava Warrier v. State of T. C. A.I.R. 1958 Kerala 79. and C. P. Mary v. State A.I.R. 1958 Kerala 85.
Rajagopala Ayyangar J., was right in holding that the appellant was not entitled to any relief sought by him. The appeal is dismissed.
Advocates List
For the Appellant R.M. Seshadri, Advocate. For the Respondents The Advocate General, Addl. Govt. Pleader & Messrs. S. Mohan Kumaramangalam, K.V. Sankaran, Advocates.
For Petitioner
- Shekhar Naphade
- Mahesh Agrawal
- Tarun Dua
For Respondent
- S. Vani
- B. Sunita Rao
- Sushil Kumar Pathak
Bench List
HON'BLE CHIEF JUSTICE MR. RAJAMANNAR
HON'BLE MR. JUSTICE RAMACHANDRA IYER
Eq Citation
(1958) 2 MLJ 379
(1958) ILR MAD 968
AIR 1959 MAD 1
LQ/MadHC/1958/168
HeadNote
Constitution of India — Arts. 311(2) and 226 — Reduction in rank — Held, Art. 311 is concerned only with disciplinary action of certain graver varities that may be taken against civil servants of the Union or a State — It contemplates punishment and lays down what authority shall be competent to impose it and what opportunities the civil servant intended to be punished, must have to defend himself against the proposed penalty — The Article has no concern with any action which may be taken in the normal course, conformably to the nature of the term of an employment and which does not partake of the nature of punishment — Words of Art. 311 are ?dismissed or removed or reduced in rank? — Penal character of the action described by the first two words is patent and the last words ?reduced in a rank? also contemplate only such reduction as amounts to a penalty — These words are obviously linked with the third category of the penalties set out in R. 49 of the Civil Service (Classification, Control and Appeal) Rules and the fifth category of those set out in R. 1702 of the Railway Establishment Code, both expressed in the same language: reduction to a lower post or time scale or to a lower stage in a time scale — Referring to removal, held, the Article does not contemplate every removal from service but only removal on the basis of some imputation or charge — Service Law — Civil Service (Classification, Control and Appeal) Rules, 1930 — R. 49 — Railway Establishment Code, R. 1702 — Words and Phrases — ?Dismissed or removed or reduced in a rank?
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