Shyam Behari Tewari and Others vs Union of India (UOI) and Another

G. Mehrotra, C.J.—These petitions have come up before the Special Bench on reference made by the Division Bench. The main point raised in all these petitions is the constitutionality, and the scope and ambit of Rule 149 of the Indian Railway Establishment Code, Volume I, purported to have been made under Article 309 of the Constitution.

Briefly, the facts of the case to which Civil Rule No. 386 relates is that the Petitioner Shyam Behari Tewari was employed in the North East Frontier Railway under the District Electrical Engineer at Cattier and no service agreement was entered into between the Union of India, represented by the Railway Administration and the Petitioner. At the relevant time, he was drawing a salary of Rs. 83/-plus Rs. 10/- dearness allowance. On the 22nd May, 1901, the Petitioner received an order of suspension passed by the District Electrical Engineer, Northeast Frontier Railway, Katihar. As no reasons were given for suspension, the Petitioner made repeated enquiries at the office of the District Electrical Engineer. No departmental enquiry was held against the Petitioner nor did he receive any charge. After some time, the Petitioner made an application to the District Electrical Engineer, of the Railway requesting him to give the Petitioner the reasons for suspension. On the 19th July, 1961, the Petitioner was served with an order purported to have been made by the General Manager, Northeast Frontier Railway, having his office at Maligaon, under Rule 149 of the Indian Railway Establishment Code, terminating the services of the Petitioner. This order of the General Manager terminating the services of the Petitioner has been impugned by the present petition under Article 226 cf the Constitution. The order dated the 12th July, 1951 reads as follows:

As your services are no longer required by this Railway Administration, your services are hereby terminated in accordance with Rule 149 of the Indian Railway Establishment Code, Volume I, with effect from the forenoon of 20th day of July, 1961. You will be paid one month''s pay In lieu of notice for such termination.

In Civil Rule No. 387 of 1961, the Petitioner is one Palmal Gupta, who was also employed under the District Electrical "Engineer, N.F. Railway at Katihar. On the 22nd May, 1961 he also received an order of suspension and thereafter on the 19th July, 1961, he was served with an order passed by the General Manager of the Railway Administration purporting to be one under Rule 149 of the Indian Railway Establishment Code. This order was passed on the 12th July, 1961 terminating the services of the Petitioner. The order is on the same terms as the one served on Shyam Behari Tewari, the Petitioner in Civil Rule No. 336 of 1961.

Civil Rule No. 388 of 1961 arises out of an application by one Premchand Thakur, who was also employed under the District Electrical Engineer, Katihar. He was also suspended on the 22nd May, 1961 and his services were terminated by the said order dated the 12th July, 1961, passed by the General Manager of the Railway under Rule ''149 of the Indian Railway Establishment Code.

None of these Petitioners was given any charge sheet nor was any enquiry made. The contention raised by the Petitioners is that the order terminating the services of the Petitioners is ''ultra vires''. Although the order purports to be one passed under Rule 149 of the Indian Railway Establishment Code, it was passed by way of punishment. The order of suspension was never vacated and the Petitioners were entitled to an opportunity to meet the charges, under the provisions of the Indian Railway Establishment Code. Mainly, the point urged was that the provisions of Rule 149 of the Indian Railway Establishment Code were vocative of Article 311 of the Constitution. The power given under Rule 149 to terminate the services of the railway employees by giving a month''s notice without making an enquiry is repugnant to the provisions of Article 311 of the Constitution and thus the provisions of Rule 149 are invalid. It was also urged that Rule 149 is against the fundamental rights enshrined in Articles 14, 16 and 19 of the Constitution. The validity of Rule 149 is also challenged on the ground that it violates the provisions of Article 310 of the Constitution. Lastly, it was contended that Rule 149 is not attracted to the cases where the termination of services constitutes punishment.

Rule 149 of the Indian Railway Establishment Code, Volume I reads as follows:

Termination of service and periods of notice - (1) Temporary railway servants. - When a person without a lien on a permanent post under Government is appointed to hold a temporary post or to officiate in a permanent post, he is entitled to no notice of the termination of his service if such termination is due to the expiry of the sanction to the post which he holds or the expiry of the officiating vacancy, or is due to mental or physical incapacity or to his removal or dismissal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution of India, if the termination of his service is due to some other cause, he shall be entitled to one month''s notice provided he was engaged on a contract for a definite period and the contract does not provide for any other period of notice, and to'' a notice of 14 days if he was not engaged on a contract. The periods of notice specified above shall apply on either side, and steps should be taken to bring this condition to the notice of the railway servants concerned.

Note: No notice of termination will be necessary in a case where a railway servant Is doomed to have resigned his appointment and ceased to be in railway employ in the circumstances detailed in ''Note 2'' below Exception (ii) to Rule 732 (1).

(2) Apprentices - Except as otherwise provided in his services agreement, the service of an apprentice shall be liable to termination on one week''s notice.

(3) Other railway servants - The service of other rail- way serves shall be liable to termination on notice on either side for the periods shown below. Such notice is not, however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution, retirement en attaining the age of superannuation, and termination of service due to mental or physical incapacity:

(a) Probationary officers and gazelle railway servants on probation, oilier than those in the Medical Department. 3 months'' notice.

(b) Gazetted railway servants on probation in the Medical Department. 1 month''s notice,

(c) Permanent gazetted railway servants. 6 months'' notice.

(d) Permanent non-gazetted railway servants. '' 1 month''s notice.

(4) In lieu of the notice prescribed in this rule, it shall be permissible on the part of the Railway Administration to terminate the service of a railway servant by paying him the pay for the period of notice

Note: The appointing authorities are empowered to reduce or waive, at their discretion, the stipulated period of notice to be given by an employees, but the reason justifying their action should be recorded.

This power cannot be re-delegated.

Before the hearing started, a preliminary point was raised by the counsel for the opposite parties that in view of the provisions of Article 359, the proceedings cannot go on. The contention is that as an emergency has been declared by the President under Article 352 of the Constitution, the fundamental rights guaranteed under Article 19 have been suspended. Article 358 provides that -

While a Proclamation of Emergency is in operation nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in the Part be competent to make or to take, but any law so made shall, to the extent of the in competency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.

This Article suspends the restriction on the powers of the State to make any law in contravention of the provisions of Article 19 only during the pendency of the emergency, but1 it does not lay down that the validity of the law, which has already been made, cannot be challenged on the ground of violating the provisions of Article 19 of the Constitution There can be thus no bar to the Petitioners challenging the validity of Rule 149 on the ground that it infringes Article 19 of the Constitution. Article 359 provides that.

Where a Proclamation of Emergency is in operation, the President may by Order declare that the right to move any Court for the enforcement of ouch of the rights conferred by Part III as may be mentioned in the Order and all proceedings pending in any Court for the enforcement of the rights so mentioned shall remain suspended for the, period during which the Proclamation is in force or for such shorter period as may be specified in the order.

It is admitted that the President has by order declared that during the pendency of the emergency, the, right to move any Court for the enforcement of the fundamental rights conferred under Article 14 of the Constitution will remain suspended. The order of the President, however, does not absolutely take away the right of any person to move this Court for the enforcement of any right conferred under Article 14 of the Constitution. The Order reads as follows:

In the exercise of the powers conferred by Clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person to move any Court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under Clause (1) of Article 352 thereof on the 26th October, 1962, is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made there under.

This order clearly suspends the right of a person to move any Court for the enforcement of the rights conferred by Articles 14, 21 and 22, only if such person has Been deprived of any such rights under the Defence of India Ordinance, or any rule or order made there under. If they have been deprived of any such right otherwise than by the Defence of India Ordinance, or any rule made there under, the order of the President will not be attracted. As, however) the counsel for the Petitioner himself had some doubts about the applicability of this order and Article 359 to the present proceedings, he made a statement that he does not wish to challenge the validity of the Rule 149 on the ground that it violates Article 14 of the Constitution. Consequently by our order dated 20th November 1962 the Petitioners were allowed to confine their petitions on the grounds other than the violation of Article 14. The counsel has, however, challenged the validity of the rule on the ground that it violates Article 14 of the Constitution. His contention is that as Article 16 is not mentioned in the declaration of emergency issued by the President under Article 359, there is no bar to the Court considering the question whether Rule 149 violates Article 16 of the Constitution Article 16 provides.

16 (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them be ineligible for, or discriminated against in respect of any employment or office under the State.

The contention is that Rule 149 gives very wide powers to the General Manager to terminate the services of an employee. No principles are laid down in the Rule to guide the authorities in the exercise of their powers under Rule 149. It is open to the authorities to pick and choose any person they like and terminate the services of a particular employee without giving him any opportunity to explain his conduct, while in the case of another employee similarly situate, refrain from taking action under Rule 149, and take action under Article 311 of the Constitution. This arbitrary power amounts to discrimination. Article 16 embodies the principle of equality before law or equal opportunity contained in Article 14 in the sphere of employment. It is a special Article dealing with employment, but a person who seeks his remedy under Article 16 in the matter of employment is in effect enforcing the fundamental right enshrined under Article 14 of the Constitution. In effect, he is enforcing the rights conferred on him under Article 14 In the sphere of employment, and in view of his statement that he does not challenge the validity of the rule on the ground of violation of Article 14, he cannot be allowed to challenge the validity of the rule on the ground that it infringes Article 16.

The fundamental right guaranteed under Article 14 is a general right of which the right conferred under Article 16 is a species and in our opinion, the Petitioners in view of this statement are not entitled to contend that the Rule violates Article 16 of the Constitution.

In the case of The General Manager, Southern Railway Vs. Rangachari, , it was observed:

Article 16(1) and (2) really give effect to the equality before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article 15(1). The three provisions form part of the same constitutional code of guarantees and supplement each other.

The claim of the Petitioners that Rule 149 violates the provisions of Article 16 of the Constitution is in effect an attempt to enforce the fundamental right of equality before law or equal protection of law embodied in Article 14 in the sphere of employment. Moreover in view of our decision that Rule 149 is not attracted to the cases where the services of a permanent employee are terminated, as such termination amounts to punishment, it is not necessary to test the validity of Rule 149 on the ground that it infringes Articles 14 and 16 of the Constitution. As the services of the Petitioners could not be terminated under Rule 149, the orders terminating the services of the Petitioners are without the authority of any rule and violative of Article 311 of the Constitution. As in our opinion Rule 149 does not cover the case of a permanent employee, because in his case the termination will constitute punishment, the rule cannot be held to be violative of Arts. 14 and 16, as the term of employment itself was that he should be discharged from service after notice. The case of Satish Chandra Anand Vs. The Union of India (UOI), answers the contention. It clearly lays down that if the rules provide for termination of the services of a temporary employee on giving notice, such a rule is not violative of Article 14 or Article 16 of the Constitution.

The next contention of the Petitioners is. that Rule 149 violates Article 311 of the Constitution and is thus invalid. Rule 149 has been made by the President in the exercise of his powers under Article 309 of the Constitution. The power to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State conferred on the President under Article 309. of the Constitution is subject to the provisions of the Constitution and thus if Rule 149 violates Article 311, it will be invalid as the exercise of the power under Article 309 has been subject to the provisions of Article 310. The contention of the Petitioners is that the services of a Railway employee can be terminated after giving a month''s notice under Rule 149 without giving him a notice to show cause under Article 311(2) of the Constitution. Rule 149 is thus vocative of Article 311 of the Constitution. Clause (3) of R. 149 lays down "that the services of other railway servants shall be liable to termination on notice on either side for the periods shown below. Such a notice Is not, however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity.

Clause (3) thus makes it clear that in cases whore the services are terminated as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311, or determent on attaining the age of superannuation or due to mental or physical incapacity, Clause (3) of Rule 149 is not attracted. Cases where the termination of service constitutes dismissal or removal as a disciplinary measure are taken out of the ambit of Rule 149. Article 311 of the Constitution deals with the cases of termination of service amounting to dismissal or removal and not all cases of termination of service. If the cases which come under Article 311, or retirement on attaining the age of superannuation and termination of service due to mental or physical incapacity, are not covered by Rule 149, there is no question of there being any inconsistency between Rule 149 and Article 311 of the Constitution. Besides the cases covered by Article 311, the framers of the Rule 149 have also excluded the case of retirement on attaining the age of superannuation from the ambit of Rule 149 and this had to be done as it has been held in a series of decisions that cases of retirement on attaining the age of superannuation do not come under the purview of Article 311 of the Constitution.

The contention of the counsel for the opposite parties is that all terminations of service are not dismissal or removal as contemplated by Article 311 of the Constitution. If the termination of the service is brought about by the exercise of the right under a contract of service, such a termination is not covered by Article 311. It is further contended that If the termination is in pursuance of any rule otherwise validly made, such a termination does not come under Article 311. In the present case it is urged that if the termination was under Rule 149, it was not covered by Article 311. In other words, it does not amount to dismissal or removal within the meaning of Article 311 and thus the question of any Inconsistency between Rule 149 and Article 311 does not arise. This argument, to my mind, ignores the plain language of Rule 149. If Rule 149 on its plain reading excludes the cases which constitute dismissal and removal under Article 311 and if a particular termination of ser vice comes within the provisions of Article 311, it cannot be said to be covered by Rule 149.

If the field of operation of Rule 149 and Article 311 is distinct and different, it cannot be said that a case which is covered by Article 311 of the Constitution will also come within the ambit of Rule 149. Each termination thus, will have to be examined independently of Rule 149 to find out if it is covered by Article 311 of the Constitution or not. If it is found without reference to Rule 149 that it is covered by Article 311, then on the plain language of Rule 149, it will not be covered by it. If, however, it is found without reference to Rule 149 that a particular termination is not covered by Article 311, then obviously such a termination will be covered by Rule 149 and the termination can be done only after giving a month''s notice. Cases which are covered by Article 311 and thus not covered by Rule 149, may not require giving of a month''s notice. The only question thus which remains to be considered is whether the termination in the present case can be said to be a dismissal or removal from service as contemplated by Article 311 of the Constitution or not.

The contention of the Petitioners is that if the termination is by way of punishment, the termination will amount to a removal from service under Article 311 of the Constitution and if it does amount to a removal, it will not be a termination of service contemplated by Rule 149.

It will be convenient to examine some of the authorities cited at the Bar In this connection.

The first case where their Lordships of the Supreme Court interpreted the provisions of Article 311 of the Constitution is reported In AIR 1953 SC 250. The matter arose out of an application under Article 32 of the Constitution. The Petitioner in that case was employed by the Government of India on a five year contract in the Directorate-General of Resettlement and Employment of the Ministry of Labour. The contract was due to expire in 1950. Before the expiry of the contract the Government offered him re-employment on a condition that his fresh employment will be governed by the Central Services (Temporary Service) Rules, 1949. This offer was accepted by the Petitioner. Under the terms of these rules the Petitioner''s services were terminated on giving a month''s notice with effect from the 1st December 1950. It was this order of termination which was challenged by the Petitioner under Article 32. It was held that Article 311 was not attracted in this case. It was observed that Article 311 had no application because that was neither a dismissal nor a removal from service. It was an ordinary case of a contract being terminated by notice under one of its clauses. The whole history of Article 311 was considered and it was held that the words ''dismissed'', ''removed'' and ''reduced in rank'' used in Article 311 have the same meaning as those words have In Central Civil Services (Temporary Service) Rules, 1949.

The argument that Articles 14 and 16 were violated In this case was also repelled. It was held that Article 16 (1) dealt with equality of opportunity in all matters relating to employment or appointment to any office under the State. This was a case of contract. By accepting the offer of the Government the Petitioner in that case had agreed to be bound by the Central Civil Services (Temporary Service) Rules, 1949 and accordingly his services under the said rules were terminated by giving a month''s notice. The termination was brought about under the terms of the contract. It should also be noted that in this case their Lordships repelled the contention of the Petitioner that his services were quasi-permanent and thus the Petitioner had no lien over the service and he had no right to continue in service till the period of superannuation.

The law has been authoritatively laid down in the case of Parshotam Lal Dhingra Vs. Union of India (UOI), . The Appellant in that case Parshotam Lal Dhingra was employed in the Indian Railway Service and on the 19th August 1953 the General Manager of the Railway reverted the Appellant from the post of Assistant Signal and Tele-communication Engineer (Telegraphs) in class II service to his substantive post in. class III service. This order was challenged. The Appellant in that case was holding a post in class III service of the Railway. Some candidates including the Appellant appeared before a selection board constituted for selecting a candidate for the post of Assistant Signal and lee-communication Engineer (Telegraphs) which was a gazetted post in class II officer''s cadre. The Appellant was selected out of the seven candidates for this post and a notice appointing him to that post was issued from the headquarters of the East Punjab Railway. In the notification he was shown to be appointed to officiate in class II service. On some-confidential reports made against him he was reverted to his substantive post by the order of the General Manager.

The Appellant''s appeal having failed against the confidential remarks made against him, the Petitioner filed a writ petition under Article 226 of the Constitution before the High Court of Punjab. The question which arose for consideration before their Lordships of the Supreme Court was whether the order reverting him to his substantive post constituted reduction in rank or not. Dealing with the question as to whether the Article 311 made any distinction between permanent employees or temporary employees, it was observed at pp. 845 846 (of SCR): (at pp. 43-44 of AIR) of the report as follows:

Article 311 does not, in terms, say that the protections of that article extend only to persons who are permanent members of the services or who hold permanent civil posts. To limit the operation of the protective provisions of this article to these classes of persons will be to add qualifying words to the articles which will be contrary to sound principles of Interpretation of a Constitution or a statute. Article 311, in our view, makes no distinction between the two classes, both of which are, therefore, within its protection and the decision holding the contrary view cannot be supported as correct.

After dealing with the entire history of the service rules and the constitutional provisions it was held that it is only in those cases where the Government intends to inflict those three forms of punishments that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. If the termination of service is sought to be brought about otherwise than by way of punishment, then the Government servant will not get the protection under Article 311 (2). After having held that Article 311 is only attracted where the termination is brought about by way of punishment, Das C.J. who delivered the majority judgment, proceeded to consider under what circumstances an order for the termination of) service can be said to be inflicted as and by way of punishment and when not. The folr lowing passage at pp. 857-58 (of SCR): (at pp. 47-48 of AIR) of the report which was referred to by the counsel for both the parties in support of their respective contentions, may be quoted:

The foregoing conclusion, however, does not solve the entire problem, for it has yet to be ascertained as to when an order for the termination of service is inflicted as and by way of punishment and when it is not. It has already been said that where a person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service'' rules read with Article 311 (2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant''s right and brings about a premature end of his employment. Again where a person is appointed to a temporary post for a fixed term of say five years his service cannot, in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with Article 311(2). The premature termination of the service of a servant so appointed will prima facie be a dismissal or removal from service by way of punishment and so within the purview of Article 311(2).

At p. 830 (of SCR) ; (at p. 48 of AIR) again it was observed as follows;

One test for determining whether the termination of the service of a Government servant Is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by Itself be a punishment and he will be entitled to the protection of Article 311. In other words and broadly speaking, Article 311(2) will apply to those cases where the Government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put It in another way, if the Government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is, prima facie and per se, not a punishment and does not attract the provisions of Article 311.

Again at p. 361 (of SCR): (at D. 49 of AIR), it is observed:

Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this. Court in Satish Chandra Anand Vs. The Union of India (UOI), . Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311 (2), as has also been held by this Court in Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), . In either of the two above-mentioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chag''la C. J. has said in Shrinivas Ganesh v. Union of India, IS! MR 1956 Bom 455, wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted.

I have quoted in extensor the observations of Das C.J. in the case of Parshotam Lal Dhingra Vs. Union of India (UOI), . The points which emerge out of this decision are that-

(1) Article 311 of the Constitution makes no difference between a temporary servant and a permanent servant....

(2) Article 311 is attracted only in those cases where the Government intends to inflict three forms of punishments, namely, dismissal, removal or reduction in rank and the. Government servant has to be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him only if the Government intends to inflict the aforesaid three forms of punishment.

(3) A person appointed substantively to a permanent post, in Government service normally acquires a right to hold the post until under the rules he attains the age of superannuation or is compulsorily retired and in the absence of any contract, express or implied, or a service rule ho cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, or negligence or there are emergency or other disqualifications and appropriate proceedings are taken under the service rules read, with Article 311(2) of the Constitution. Termination of service of such a servant so appointed must be per se a punishment.

(4) If the servant has no right to the post as where he is, appointed to a post permanent or temporary either on probation or on an officiating basis and whose temporary service, has not ripened into a quasi-permanent service as defined in the temporary service rules, the termination of his. Employment does not deprive him of any right and, therefore, cannot by itself be a punishment. The Indian Railway Establishment Code Volume 1 Rr. 142 to 200 deal with general conditions of service and Rr. 1701 and onwards in Chapter. XVII of Vol. 1 regulates the conduct and discipline of the railway servants and Railway Fundamental Rules collected in Vol. 2 regulate their conditions of service, pay and deputation. Thus the Indian Railway Establishment Code also provides for different punishments and procedures to be followed for inflicting the same. The three graver punishments of dismissal, removal and reduction of rank are dealt with separately and the provisions are made regulating the procedure which must be followed before these graver forms of punishments can be inflicted.

In the case reported in Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), It was held that compulsory retirement under Article 465A Note 1 of Civil Service Regulation 1920 does not amount to a punishment under Article 311 of the Constitution. As laid down by J the Supreme Court, one test for determining whether the termination of service of a Government servant Is by way of punishment is to .ascertain whether the servant but for such termination has the right to hold the post. The other test may be whether he has been visited with the evil consequence such as the forfeiture of his pay or allowances and the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion. If a person has got a right to hold a post and he is deprived of the post prematurely prima facie such a deprivation will constitute a punishment. If a person as a result of termination of his service loses his allowances or benefits which have already accrued, such a termination will certainly constitute a punishment. If a person is compulsorily retired or his services are terminated under some rules, the termination does not bring about any evil consequence. If, however, a person has a right to remain in the post and that right is curtailed by exercise of the power under the contract, or under the conditions of service rules, in one sense it does affect his right to remain in the post.

But as such an action is taken in the exercise of the contractual right or in the exercise of the powers given under the conditions of service rules, it is not taken by way of punishment and thus it Is not covered by Article 311 of the Constitution. In such a case even though no inquiry is made, there is no violation of Article 311 of the Consutution as the termination does not come within Article 311 at all. If, however, there Is no rule at all which gives power to the employer to terminate the service of the employee, and where the termination constitutes punishment inasmuch as it affects his right to remain in service till superannuation, the question of violating Article 311 of the Constitution will necessarily arise. It was contended by the counsel for the Petitioners that in Parshotam Lal Dhingra Vs. Union of India (UOI), when their Lordships of the Supreme Court held that even in the case of a permanent employee if the termination is under conditions of service rules, it will not amount to punishment, they restricted it to the service rules relating to the compulsory retirement before the period of superannuation ''and not the rules which by their own force give a right to the Government to terminate the services of an employee by giving a month''s notice.

The argument of the counsel for the Opposite party, however, is that no distinction can be made between a contract and rules laying down the conditions of service. Relianr''e is placed on the following observations in the case of Hartwell Prescott Singh Vs. The Uttar Pradesh Government and Others, .

in principia, we cannot see any clear distinction between the termination of the services of a person under the terms of n contract governing him and the termination of his services in accordance with the terms of his conditions of service.

To my mind the question is one of the interpretation of Rule 149. Rule 149 as I have already observed, does not give power to the Railway authorities to terminate the services of a railway servant by giving a month''s notice if the dismissal or removal is as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution, or on the ground of retirement on attaining the age of superannuation or termination of service duo to physical or mental incapacity. If the termination of the services of a permanent employee who has a right to remain in the service unless he attains the age of superannuation per se amounts to dismissal or removal, in that case such a termination cannot be done under Rule 149 by giving a month''s notice. The words ''The service of other railway servants shall be liable to termination on notice on either side for the periods shown below'' in Clause (3) of Rule 149 to not confer a right in all cases to terminate the services after giving notice and the subsequent sentence in the said clause cannot be said to relate to the giving of notice alone. The sentence in Clause (3) beginning with the words "Such notice is not, however, required" refer to the notice contemplated in the first sentence of Clause (3) and thus the proper reading of Clause (3) will be that the right to terminate the services of an employee by giving notice is only conferred in cases of termination which do not amount to dismissal or removal within the meaning of Article 311 of the Constitution. If Rule 149 is so interpreted, there is no inconsistency between Article 311 and Rule 149.

Reference at this stage may be made to the case of P. Balakotaiah Vs. The Union of India (UOI) and Others, . In this case the services of a Railway employee were terminated by the General Manager giving him one month''s salary instead of notice. Before his services were terminated a notice was issued to the Appellant under Rule 3 of the Security Rules stating therein that in view of certain facts there was reason to believe that the Appellant was engaged in subversive activities and calling upon him to show cause why his services should net be terminated. The employee gave his explanation denying the allegations. The matter was then referred to the Committee of Advisors who held an inquiry and after hearing him found the charges true. Acting on the report of the Advisory Committee the General Manager terminated his services after giving him a month''s notice before his services were terminated. The employee had filed a petition under Article 226 of the Constitution challenging the notice issued under Rule 3 of the Security Rules. The validity of the notice was challenged on the ground that the security rules were in contravention of Articles 14, 19 and 311 of the Constitution. The Nagpur High Court held that it was not necessary to decide whether the Security Rules were void as assuming that they were, the orders terminating the services of the Petitioner could be sustained under Rule 148 of the Railway Establishment Code. On appeal the Supreme Court did not finally decide the question as to whether the order passed under the provisions of the Security Rules could be regarded as one passed under R. 148, as the counsel for the Respondent agreed that the validity of the order might be determined on the footing that it was passed under Rule 3 of the Security Rules without reference to Rule 148. The validity of the Security Rules was thus considered with reference to the provisions of Articles 19 and 14 of the Constitution. The argument that the Security Rules were contrary to Article 311, was also considered by their Lordships of the Supreme Court. In this case however the validity of Rule 143 of the Railway Establishment Code was not considered.

Rule 3 of the Security Rubles provided that a member of the Railway service who, in the" opinion of the competent authority is engaged in or is reasonably suspected to be engaged in subversive activities, or is associated with others in subversive activities in such manner as to raise doubts about his reliability, may be compulsorily retired from service, or have his service terminated by the competent authority after he has been given due notice or pay in lieu of such notice in accordance with the terms of his service agreement. Rule 7 provided for the payment of compensation, pension, gratuity and provident fund benefits to a person who has been compulsorily retired under Rule 3. In these circumstances it was held that the provisions of Rule 3 were not inconsistent with the provisions of Article 311 of the Constitution. The order terminating the services was passed under the conditions of service rules and thus does not amount to dismissal or removal within the meaning of Article 311 of the Constitution, it should also be noted that the inquiry was made in that case. There are no words in Rule 3 to show that the cases of punishment per se were outside the ambit and scope of the said rule.

Rule 148(3) reads as follows:

The service of other (non-pension able) railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not however required in cases of summary dismissal or discharge under the provisions of service agreements, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity:

(a) Probationary officers and officers 3 months'' notice. on probation other than those in the Medical Department. (b) Officers on probation in the 1 month''s notice. Medical Department. (c) Permanent Gazetted Officers, 6 mouths'' notice (d) Permanent; Non-gazetted em- 1 month''s notice. ployets.

The language of Rule 149 Is thus entirely different. Reference was made by the counsel for the Respondents to the cases of Priya Gupta Vs. General Manager, North Eastern Railway, Gorakhpur, , Kishan Prasad v. Union of India reported in AIR 1950 Cal 64 and The Union of India (UOI) and Others Vs. Askaran, in support of the contention that R. 148 was field to be valid and not invalid as being inconsistent with the provisions of Article 311. As I have already said, the question of interpretation of Rule 149 did not come up for decision in those cases and thus they are not of much assistance so far as the present case is concerned. It is not disputed that in the present case the Petitioners were all permanent employees. It is also not disputed that in the pre-, sent case the provisions of Article 311 (2) were not complied with. The termination of service in my opinion, therefore, not being one under Rule 149 as It was by way of punish- merit, the termination was in violation of the provisions of Article 311 (2).

One more aspect of the question may be examined. It is contended that if the Rule 149 is interpreted to include the cases of permanent employees and cases which will otherwise constitute dismissal or removal within the meaning of Article 311 of the Constitution, then the rule is vocative of Article 310 along with Article 311 of the Constitution.

It is urged by the counsel for the opposite parties that there is no difference in language of Rule 149 and the old Rule 148. The clause "The service of other railway servants shall be liable to termination on notice on either side for the periods shown below" confers a complete right to the authorities to terminate the services of a permanent railway servant by giving him a month''s notice. In the old Rule 148 an exception was made in the case of summary dismissal or discharge under the provisions of the service agreements. In the new Rule 149 the requirement of notice has been dispensed with in the cases where the dismissal or removal is as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution. If the termination of service was in the exorcise of the powers under the old Rule 148 or the present Rule 149, it is not a termination amounting to dismissal or removal and thus Article 311 of the Constitution is not attracted. The provisions of Rule 148 have been held to be valid and on a parity of reasoning the provisions of Rule 149 will also be valid.

At this stage it may be convenient to refer to the two cases mentioned before on which strong reliance has been placed by the opposite party in support of the contention that the provisions of Rule 148 are valid. In the case reported in The Union of India (UOI) and Others Vs. Askaran, it was held that termination of service by notice under Rule 148(3) of the Railway Code was not different from compulsory retirement under Article 465A of the Civil Service Regulation. Such termination did not imply any stigma. It will entail no loss of the benefits already earned by the servant whose service is being terminated, though of course he cannot remain in service up to the age of superannuation. This decision was based on the case reported in Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), . The decision in Parshotam Lal Dhingra Vs. Union of India (UOI), which to my mind lays down that if the services of a permanent employees are terminated, prima facie it constitutes punishment, was not before the Rajasthan Court. Inthe case reported in AIR 1959 All C43 this aspect of the matter does not appear to have been considered, though reference has been made to Parshotam Lal Dhingra Vs. Union of India (UOI), . The observations in Parshotam Lal Dhingra Vs. Union of India (UOI), to the effect that the case of termination of service of a permanent employee who has a right to continue in the post per se constitutes dismissal or removal, have not been conspired.

Reference may be made to the case of The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, . In this case a Sub-Inspector of Police was dismissed from service. On a petition under Article 226 of the Constitution before the High Court, the High Court held that the previsions of paragraph 486 of the U.P. Police Regulations were not complied with and therefore the proceedings taken u/s 7 of the Police Act were invalid and illegal. The order of dismissal was quashed. On an appeal by the State Government the Supreme Court examined the broader contention raised by the counsel for the parties. The contention on behalf of the State of U.P. was that if there is a statute prescribing the terms of ser vice and the mode of dismissal of the servant of the Crown, the statute would control the pleasure of the Crown.

In India, the Constitution as well as the earlier Constitution Acts of 1915, as amended in 1919, and 1935 embodied the incidents of ''tenure at pleasure'' of His Majesty, or the President or the Governor, as the case may be, but did not empower the Legislatures under the earlier Acts and the Parliament and the Legislatures under the Constitution to make a law abrogating or modifying the said tenure; therefore, any law made by appropriate authorities conferring a power on any subordinate officer to dismiss a servant must be construed not to limit the power of His Majesty, the President or the Governor, as the case may be, but only to indicate that they would express their pleasure only through the said officers. The rules made in exercise of a power conferred on a Government under a statute so delegating the power to a subordinate officer can only be administrative directions. The counsel for the Respondent submitted that the tenure at pleasure created by Constitution Acts can be abrogated, limited or modified by law enacted by the appropriate legislative bodies. Subba Rao, J. who delivered the majority judgment has summed up the position at page 761 as follows :

The discussion yields the following results: (1) In India every person who is a member of a public service described in Article 310 of the Constitution holds office during the pleasure of the President or the Governor, as the case may be, subject to the express provisions therein. (2) The power to dismiss a public servant at pleasure is outside the scope of Article 154 and, therefore, cannot be delegated by the Governor to a subordinate officer, and can be exercised by him, only in the manner prescribed by the Constitution. (3) This tenure is subject to the limitations or qualifications mentioned in Article 311 of the Constitution. (4) The Parliament or the Legislatures of States cannot make a law abrogating or modifying this tenure so as to impinge upon the overriding power conferred upon the President or the Governor under Article 310, as qualified by Article 311. (5) The Parliament or the Legislatures of States can make a law regulating the conditions of service of such a member which includes proceedings by way of disciplinary action, without affecting the powers of the President or the Governor under Article 310 of the Constitution read with Article 311 thereof. (6) The Parliament and the Legislatures also can make a law laying down and regulating the scope and content of the doctrine of ''reasonable opportunity'' embodied In Article 311 of the Constitution; but the said law would be subject to judicial review. (7) If a statute could be made by Legislatures within the foregoing permissible limits, the rules made by an authority In exercise of the power conferred there under would likewise be efficacious within the said limits.

The power thus, of the Legislature or the Parliament to make laws under Article 309 of the Constitution Is limited and such law cannot be made by the Parliament abrogating or modifying the tenure of every person who is member of a civil service described in Article 310 of the Constitution. It will be difficult to hold'' under the circumstances that if the President exercised his pleasure and terminated the service of the railway employee, the employee had to be given a reasonable opportunity, to show cause against the punishment, but If the services are terminated by an officer, no such procedure need be followed. Such a rule in my judgment will be modifying the tenure of service which is at the pleasure of the President qualified by Article 311 (5) of the Constitution and will not be valid. Rule 149 thus, empowers the Railway authorities to terminate the services of the Railway employee on giving notice In cases other than those where the termination amounts to dismissal or removal as a disciplinary measure, retirement on attaining, the age of superannuation and termination of service due to mental or physical Incapacity.

The only question which thus remains to be considered is whether the termination In the present case can be said to be removal or dismissal as a disciplinary measure. If an employee has a right to hold a post, any termination of his service per se will constitute a dismissal or removal as a punishment and thus the termination of services of a permanent employee will constitute a dismissal or removal as a disciplinary measure and Is outside the purview of Rule 149(3).

In such cases the termination of service has to be made after complying with the provisions of Article 311 of the I Constitution or under Rule 1701 and subsequent rules in Chapter XVII of Vol. I of the Railway Establishment Code.

It was further contended by the counsel for the Petitioners that the General Manager had no power to issue a notice u/s 149. It is sufficient to point out that Rule 149(3) does not specify the authority which has to issue notice and thus wider the general law the notice can be given by the appointing authority or one superior to him and the notice by the General Manager cannot be said to be illegal on that ground.

In the result, therefore, I would allow these petitions and set aside the orders terminating the services of the Petitioners on the ground that the provisions of Article oil of the Constitution have not been complied with, with cost which is assessed at Rs. 50/- in each case.

S.K. Dutta, J.

I agree.

C.S. Nayudu , J.

I am generally in agreement with the conclusion reached by My Lord the Chief Justice in his judgment just pronounced, and agree that these petitions should be allowed and the orders terminating the services of the Petitioners complained against be set aside with costs.

It is not necessary for me to recount the facts of the case which have been set out in extenso in the judgment of My Lord the Chief Justice. I would, however, like to make a few observations which I consider necessary in the circumstances of these cases.

The main and perhaps the only point that requires consideration in these cases is, whether Rulr 149 of the Indian Railway Establishment Code is legally and constitutionally a valid rule, and, if so, whether the action taken by the General Manager of the Railway concerned, in terminating the services of the Petitioners under the aforesaid rule, is valid and supportable in law.

At the outset it may be mentioned that the said Rule 149, being a rule purporting to have been made in exercise of the powers vested under Article 309 of the Constitution, would not be constitutionally valid if it offends against any of the Articles of the Constitution, particularly Articles 310 and 311. Article 309 itself makes it clear that any law or rule made under the Article by an Act of the appropriate Legislature or otherwise shall be subject to the provisions of the Constitution. This Article is as follows :

Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor or Rajpramukh of a State or such person as he may direct In the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in, that behalf is made by or under an Act of the appropriate Legislature, under this Article, and any rules so made shall hav3 effect subject to the provisions of any such Act.

Article 310 of the Constitution lays down that the tenure of office of persons serving the Union or a Stale shall beat the pleasure of the President of the Union and of the Governor of the State respectively. This Article is as follows:

(1) Except as expressly provided by this Constitution, every person who is member of a defence service or of a civil service of the Union or of an all-India service or heIds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every parson who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor or, as the case may be, the Rajpramukh of the State.

(2) Notwithstanding that a person holding a civil post. under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor or Rajpramukh of the State, any contract under which a person, not- being a member of a defence service or of or, all-India service or of a civil service of the Union or a State,'' is appointed under this Constitution to hold such a post may, if the President or the Governor or the Rajpramukh, as the case may be, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.

It is seen from the above that the tenure of office of a person serving under the Union is at the pleasure of the President. It must also be noticed that this pleasure should be exercised by the President or the Governor, as the case may be, himself, and cannot be delegated to any subordinate authority. It would undoubtedly be open to the President to terminate his services according to his pleasure, with the one exception that this pleasure could not be exercised against or contrary to any express provision in the Constitution. Such an express provision is contained in Article 311 of the Constitution, which is as follows:

(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced In rank until he has been given a reasonable opportunity of showing cause against the action- proposed to be taken in regard to him;

Provided that this clause shall not apply.

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;

(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is-not reasonably practicable to give to that person an opportunity of showing cause; or where the President or Governor or Rajpramukh, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.

(3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under Clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.

Having regard to the various Supreme Court decisions which dealt with this Article, the position, so far as the scope, applicability and effect of this Article are concerned, and vis-a-vis Articles 309 and. 310 may be summarized as follows:

(1) The Article applies only to action taken In the. form of a punishment where such punishment Involved dismissal, removal from service or reduction In rank.

(2) It is applicable to every kind of civil service under the Union or the State, whether permanent, temporary or on contract.

(3) Where the services of a person in permanent service are terminated before he reached the age of superannuation and he is thus prevented from continuing to servo, which, but for the order of termination he would have been entitled to, such termination amounts to removal within the meaning of ''the Article and such removal shall be. regarded per se as a punishment attracting the applicability of the safe guards in Article 311.

The same would be the case where service under a contract is terminated before the expiry of the contract period or where a person is dismissed or removed from temporary service or reduced in rank as a punishment.

(4) No law passed under Article 309 nor any rule framed there under can curtail or encroach upon the pleasure of the President or the Governor, as the case may be, exercisable under Article 310 of the Constitution.

(5) Similarly any'' such law or rule cannot be regarded as valid if it offended against Article 311 of the Constitution, where that Article applied.

(6) The exercise of the pleasure of the President or the Governor, as the case may be, could only be done subject to the provisions of Article 311. In other words, the termination of service in the exercise of the pleasure of the President or the Governor, as the case may be, without complying with Article 311 (2) cannot be validly effected, where the requirements of Article 311 have to be complied with.

(7) The termination of the service by the exercise of the pleasure could be effected by the President or the Cover nor, as the case may be, only subject to the above limitations, and this exercise of pleasure cannot be delegated to any other person or subordinate officer.

Bearing these principles in mind I shall now examine the constitutional validity of Rule 149(3) with which we are concerned in these cases. This Rule is as follows:

Termination of service and periods of notice:

(1) Temporary Railway servantss

(2) Apprentices

(3) Other Railway servants - The service of other railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not, however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity-

(a) Probationary officers and gazetted railway servants on probation other than those in the Medical Department - 3 months'' notice

(b) Gazetted railway servants on probation in the Medical Department - 1 month''s notice.

(c) Permanent Gazetted railway servants - 6 months'' notice.

(d) Permanent non-gazetted railway servants - 1 month''s notice.

(4) In lieu of the notice prescribed in this rule, it shall be permissible on the part of the Railway Administration to terminate the service of a railway servant by paying him the pay for the period of notice.

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This power cannot be re-delegated.

At the outset it is clear that Rule 149 (3)(c) and (d) is intended to apply to permanent gazetted railway servants as well as permanent non-gazetted railway servants. We are in these cases concerned with the latter category. Analyzing the relevant portion of Sub-rule (3) of Rule 149, it may be seen that the service of a permanent gazetted or non-gazetted railway servant can be terminated by giving the prescribed notice and that such notice is not required in the following cases:

(1) where disciplinary action is taken under Article 311 of the Constitution,

(2) retirement on attaining the age of superannuation, and,

(3) termination of service due to mental or physical incapacity.

As pointed out by Das, C.J. of the Supreme Court in Parshotam Lal Dhingra Vs. Union of India (UOI), , where a person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until under the rules he attains the age of superannuation or is otherwise compulsorily retired under the service rules for reasons of health. In the event of his being guilty of misconduct, negligence, inefficiency or other disqualification, appropriate proceedings are required to be taken under the service rules complying with Article 311(2) of the Constitution before his service could be prematurely terminated for those reasons. Even mere termination of service of such a servant in permanent service as aforesaid, must per se be a punishment, as it necessarily involves a forfeiture of the servant''s right to continue in service till the date of his superannuation and brings about a premature conclusion of his employment. Similarly, the premature termination of service in the case of a person not in permanent service, but who is serving under a contract for a fixed term, in the absence of a provision in the contract providing for termination of service by notice on either side before the expiry of the contract period, such termination would also on principle amount to per se punishment, as it has the effect of cutting short the expectation and the right and entitlement of the servant to serve for the full agreed period under the contract In question. Thus, the termination of the service of a servant in the circumstances referred to above would prima facie amount to a dismissal or removal from service by way of punishment, so as to attract the provisions of Article 311(2). So that, in such cases where Article 311(2) is not complied with, the termination of service of the servant would be unconstitutional and would call for judicial interference.

It may be seen that in such cases, as pointed out by the Supreme. Court, the termination of service before time,'' operates as a punishment inasmuch as but for such termination a servant would have continued to hold the post and be entitled to the benefits of such holding. So that, any law passed or service rule framed under Article 309 of the Constitution which provides for such premature termination without requiring the compliance of and without complying with Article 311(2) would prima facie be unconstitutional. Hence, as Rule 149 of the Indian Railways Establishment Code provides for a. premature termination of service of a person in permanent, service by a mere notice and without complying with Article 311(2), such termination necessarily attracting Article 311 (2), would be invalid and unconstitutional. Hence, in my considered opinion, in so far a Rule 149 applies to persons in permanent service, the Rule itself would be unconstitutional, and, consequently, any action taken under and in accordance with that Rule would also be unconstitutional and invalid.

Viewing from another angle the same conclusion would follow. Rule 149 expressly states that the termination by notice under the Rule cannot be made in cases to which Article 311 applies. Then the question would be to what other cases of persons in permanent service of the Union would this Rule apply? As the Rule itself involves a premature termination of service of a permanent Government servant who is entitled to serve for the full period of service until attaining the age of superannuation, such termination itself amounting to punishment attracting Article 311 (2), there could not possibly be any case to which Rule 149 could be applied without the bar of Article 311 (2) coming in. Hence I am clearly of opinion that Rule 149 must be struck down as unconstitutional and invalid, in so far as it is made to apply to persons in permanent Government service, like the present Petitioners. Hence, a fortiori it follows that any action taken to terminate the service of the Petitioners under this Rule, without complying with the requirements of Article 31 must be quashed.

There is yet another objection to the validity and enforceability of this Rule. Although Rule 149 purports to have been framed in exercise of the power given under Article 309 of the Constitution, it purports to give power to the Railway Administration to terminate the service of any person in permanent employment in Railway service on notice at the sweet-will and pleasure of the Railway Administration. Such a power can only be exercised by the President in the instant cases where the service is under the Union and not by any other, whereas the Rule in question purports to give that power to the Railway Administration. Apart from the fact that the vesting of such arbitrary power in a subordinate body is bound to have adverse effects on the morale of the persons in Railway service, this power of the President not being capable of delegation as clearly laid down by the Supreme Court in the case reported in. The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, , any rule which purports to involve such delegation must necessarily be struck down as unconstitutional. Hence for this reason also Rule 149 must be regarded as unconstitutional, invalid and unenforceable.

In the view I have taken, it may not be strictly necessary to examine the constitutionality of the Rule in question with reference to Articles 14 and 16 of the Constitution.

The learned Counsel for the Petitioners having confined their grounds on which these petitions are based to the Articles of the Constitution other than Article 14, it would not be necessary to examine the instant cases with reference to that Article. But the learned Counsel relied on Article 16 and claimed that Rule 149(3), in so far as it applied to permanent Government servants, is violative of the fundamental right guaranteed under Article 16. The question, therefore, is required to be examined whether exception can be taken to the validity of Rule 149 (3) with reference to Article 16 of the Constitution. The relevant portion of the Article is as follows:

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

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This Article is a special Article dealing with the fundamental right of equality of opportunity in matters of public employment. As pointed out by the Supreme Court in the case reported in The General Manager, Southern Railway Vs. Rangachari, , Article 16(1) and 16(2) supplement Articles 14 and 15(1). The fact that the Petitioners did not rely on Article 14, in my opinion, would not preclude their placing reliance on Article 16 and seek the aid of the Court to enforce their fundamental rights guaranteed under that Article. This view of mine receives support from the observations of the learned Judges of the ''Supreme Court in the above quoted decision, reported in The General Manager, Southern Railway Vs. Rangachari, , wherein they observed that Articles 14, 15(1) and 16(1) and (2) are Supplementary to each other, which implies that by themselves they are different from each other and are not identical. Hence I am clearly of the opinion that the objection to Rule 149 could be examined in the light of Article 16(1,) and (2) of the Constitution. But as already stated, in the view I have taken that Rule 149(3) in so far as it purported to apply to permanent Government servant is unconstitutional having regard to Article 311, it is, in my opinion, unnecessary to examine the matter any further in regard to the constitutional validity of the Rule with reference to Article 16.

For these reasons I agree with the conclusion reached by My Lord the Chief Justice that the petitions should be allowed with costs and that the orders terminating the service of the Petitioners under the Rule in question be quashed.