Rajagopalan, J.—The petitioner applied under Art. 226 of the Constitution for the issue of a writ of certiorari, to set aside the proceedings that terminated with the order of the Inspector General of Prisons dated 30-4-1953. directing the removal of the petitioner from service.

2. The petitioner was appointed a lower division clerk in the jail department in 1934. On 28-4-1947 he was appointed to the category of Reserve Deputy Jailors. That appointment was ordered by the Inspector General of Prisons. On 21-1-1952 charges were framed against the petitioner by the Superintendent of the jail where the petitioner was employed. The petitioner submitted his explanation. He objected to the enquiry being conducted by the Superintendent.

The Deputy Superintendent of the jail was ordered to conduct the enquiry. He eventually submitted his report to the Superintendent. After issuing a notice to the petitioner to show cause why he should not be dismissed from service, and after taking into account the representations the petitioner made then, the Superintendent ordered on 21-10-1952 the dismissal of the petitioner from service. The petitioner appealed to the Inspector General of Prisons, who substituted "removal from service" in lieu of the dismissal.

3. A memorial submitted by the petitioner to the Government failed.

4. The validity of the order of the Superintendent and that of the Inspector General of Prisons were attacked on two grounds: (1) the punishment of dismissal ordered by the Superintendent was in contravention of Art. 311(1) of the Constitution and was without jurisdiction.

The petitioner having been appointed by the Inspector General of Prisons could not have been dismissed or removed from service by the Superintendent; (2) Principles of natural justice were violated when. The Superintendent, who had himself been virtually the prosecutor, assumed the role of a judge as well and awarded the punishment on the basis of the enquiry held by the Deputy Superintendent. Since the first of these objections appears to be well-founded, it may not really be necessary to examine in any detail the soundness or otherwise of the second of the contentions put forward by the learned counsel for the petitioner.

5. It was common ground that though the Superintendent of the jail could have himself appointed the petitioner to the category of Deputy jailors, the appointment was in fact ordered by the Inspector General of Prisons on 28-4-1947. It was an equally undeniable fact that, it was the Superintendent and not the inspector General of Prisons that ordered the dismissal of the petitioner from service on 21-10-1952.

No doubt the ultimate order of removal from service, dated 30-4-1953, was passed by the Inspector General of Prisons, but that was on an appeal preferred against the order of the Superintendent dated 21-10-1952. If the order dated 21-10-1952 was one passed without jurisdiction, that the appellate order was passed by the Inspector General of Prisons would not cure the invalidity of the order dated 21-10-1952.

It was not the case of the Government that independent of the proceedings ending at one stage with the order of the Superintendent dated 21-10-1952, the Inspector General of Prisons, as a competent authority, ordered the removal of the petitioner from service after going through the prescribed formalities.

6. The Question is, whether the order of the Superintendent dated 21-10-1952, which was subsequently modified on appeal by the Inspector General of Prisons, contravened the provisions of Art. 311(1) of the Constitution which forbids a dismissal or removal from service by an authority subordinate to that by which the civil servant in question was appointed.

7. My attention was not drawn to any reported case where the question that arises for determination in this case arose for decision. Under the statutory rules, the Superintendent was competent to appoint a civil servant to hold the post of a Deputy Jailor and the Superintendent was also the competent authority to order the dismissal or removal from that service. In this case, however, the order of appointment was by the Inspector General of Prisons. The validity of that appointment was never in issue. Was the dismissal by the Superintendent in contravention of Art. 311(1) is the question.

8. In my opinion, it is on a factual basis that the scope of the guarantee afforded by Art. 311(1). that no civil servant shall be dismissed or removed by an authority subordinate to that by which he was appointed, will have to be determined in any given case. Whether there was in fact an appointment has to be verified first. That Art. 311(1) postulates only a valid appointment should be obvious.

When the factum of appointment has been verified, the next fact to be verified is who was it that ordered that valid appointment. Since the validity of the appointment is essential, it is the factum of appointment that arises for consideration; who was the authority, assuming, of course, that it was a competent authority that actually ordered the appointment. In the case of the petitioner, as I pointed out earlier, it was the Inspector General of Prisons that ordered the appointment.

That an authority lower in rank than the Inspector General of Prisons was competent to order the appointment of the petitioner may not affect the determination of the question, which I posed above, who was it in fact that ordered the appointment of the petitioner, the appointment of course, being a valid appointment.

If, in fact, a person is appointed to the civil service by an authority higher than the one. which under the rules is entitled to order the appointment, and if such an appointment is a valid appointment, then the competence of the lower authority to have ordered the appointment would not confer jurisdiction on that lower authority to order the removal, because the requirements of Art. 311(1) would forbid such an assumption of jurisdiction. The authority by which he was appointed cannot be construed to mean the authority which was competent to appoint, when that competent authority did not in fact exercise that power of appointment.

9. It is under the rules framed under the rule making power conferred by Art. 309 of the Constitution, among other enabling provisions, that the authority competent to appoint the civil servant is designated. Those rules certainly cannot have the same comparative rigidity, as the constitutional guarantee for which Art. 311(1) provides.

That a change in the rules altering by downgrading it, the appointing authority would not affect the guarantee afforded by a statutory provision appears to be well settled: In AIR 1937 27 (Privy Council) Lord Roche observed :

The Courts below held that the power of dismissal was in fact delegated and was lawfully delegated to the person who purported to exercise it. Counsel for the respondent candidly expressed a doubt as to the possibility of maintaining this view and indeed it is manifest that if power to delegate this power could be taken under rules it would wipe cut a proviso and destroy a protection contained not in the rules but in the section itself.

Therefore the competence of the authority to order; removal or dismissal will have to be determined with reference to the requirements of Art. 311(1) of the Constitution; and one of the requirements is that the authority that orders the dismissal or removal should not be one subordinate in rank to that by which the civil servant in question was appointed. And the principle would appear to be that it is the factum of the appointment of the civil servant, who claims the guarantee, that determines the scope of the guarantee conferred by Art. 311(1).

10. The principle laid down in AIR 1937 27 (Privy Council) , was followed and applied by the Federal Court in 'Surajnarajan v. N. W. P. Province', AIR 1942 P. C. 3 (5) (V 29) (B), where Varadachariar J. observed:

In the Act of 1935, sub-s. (2) Of S. 240 has been enacted in unqualified terms and there is accordingly no scope for the contention that this provision can be qualified or taken away by statutory rules.

Thus even if the statutory rules permitted the superintendent to order the dismissal of the petitioner, Art. 311(1) prohibited it.

11. In 'Mahadeoprasad v. S. N. Chatterjee'; AIR 1954 Pat. 285 [LQ/PatHC/1954/13] (V 41) (C), Ramaswami J. pointed out:

If the argument of the Government Advocate is correct, either the legislature or the Governor or the Rajpramukh may enact a rule under Art. 309 vesting the power of dismissal in a subordinate authority, an authority subordinate in rank to the authority which had appointed the civil servant, and the constitutional protection contained in Art. 311 could be wiped out and destroyed by the exercise of the power conferred under Art. 309. That is surely not a correct method of interpretation of Art. 311

12. In ' Sobhagmal Vs. State, . Wanchoo C. J. observed:

Obviously therefore Art. 311 means that the dismissing authority should be at least co-ordinate in rank with the appointing authority and should not be subordinate in rank. Thus if a person is appointed by the head of one department and he is transferred to another department, he can only be dismissed or removed by the head of the other department.

The principle underlying these decisions would appear to support my view that where an authority, higher than the one entitled under the statutory rules to order an appointment, in fact, orders a valid appointment, it is the factum of that appointment that controls the scope of the guarantee conferred by Art. 311(1) of the Constitution and, if such a civil servant is dismissed or removed from service by an authority, no doubt, competent under the rules to order the appointment and also to order dismissal, which, however, is lower in rank than the authority which in fact ordered the appointment, such an order would contravene the provisions of Art. 311(1) of the Constitution.

13. Normally, when the statutory rules define the authority competent to appoint a civil servant, would be seldom that an authority higher in rank takes into itself the power to order an appointment in an individual case. But. if such an appointment is ordered by the higher authority, it is only that higher authority that can exercise the power of ordering removal or dismissal from service.

The statutory rules may vary the appointing authority from time to time. But such variations will not affect the right conferred upon a civil servant by Art. 311(1) of the Constitution. The same principle should apply where the power to appoint is validly exercised by an authority higher than the one designated by the rules as appointing authority.

Judged by that test there should be little difficulty in answering the question at issue in this case. The petitioner having in fact been appointed by the Inspector General of Prisons could not have been dismissed from service by the Superintendent of the Jail, who was an authority lower in rank than the authority which appointed the petitioner.

14. Since the provisions of Art. 311(1) were violated by the order dated 21-10-1952, the order is liable to be set aside as one passed by an authority without jurisdiction. As I have pointed out earlier that that order was modified on appeal by the Inspector General of Prisons would not be sufficient to cure the initial lack of jurisdiction to punish the petitioner.

15. I should, however, like to make it clear that only the order dated 21-10-1952 and the further proceedings in appeal are vitiated. Neither the conduct of the enquiry nor the submission of the findings can be said to have been vitiated in any way.

16. It should be remembered that it was the Deputy Superintendent that conducted the enquiry. It was open to the Superintendent had he the requisite jurisdiction, to accept these findings and to issue the prescribed notice to the petitioner to show cause against the proposed punishment. Though the learned counsel for the petitioner urged that the Superintendent had framed the charges, exercise of the jurisdiction to remove the petitioner, if it had really vested in the Superintendent, would not, in the circumstances of this case, have been vitiated by that fact.

But, as I said, the fact that it was not the Superintendent of the Jail but the Inspector General of Prisons that had appointed the petitioner stood in the way of the Superintendent assuming jurisdiction to punish the petitioner by dismissal or removal from service. The second of the contentions of the learned counsel for the petitioner, that principles of natural justice had been violated, appears to have little basis in fact.

17. The rule is made absolute. The petition is allowed. The order of the Superintendent of the Jail dated 21-10-1952 and the further order of the Inspector General of Prisons dated 30-4-1953 are set aside. There will be no order as to costs.

Final Result : Allowed