Union of India & ANR Vs. K.S.
Subramanian  INSC 163 (30 July 1976)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH RAY,
A.N. (CJ) SINGH, JASWANT
CITATION: 1976 AIR 2433 1977 SCR (1) 87 1976
SCC (3) 677
F 1982 SC1407 (26) R 1985 SC1293 (122) RF
1988 SC 501 (5) R 1988 SC1531 (46) F 1989 SC1335 (33)
Central Civil Service (Classification,
Control and Appeal) Rules, 1965 Scope of--Rules applicable only when
disciplinary proceedings are taken.
Constitution of India, 1950, Arts. 309, 310 and
311--scope of Art. 310 vis-a-vis, Arts. 309 and 311.
Practice--Duty of High Court where there is
conflict between the views expressed by Divisional benches and larger benches
of the Supreme Court.
Respondent was a welder in the Civilian Defence
On his services being terminated, without
stating any reason, he filed a suit for damages for illegal termination on the
basis that he would have continued in service up to the age of 60 instead of
being thrown out at the age of 41. The trial Court gave a decree for damages
which was affirmed by the High Court on the ground. that the doctrine of post
held during the pleasure of the President, contained in Art. 310, does not
authorise the termination without complying with the procedure prescribed by
the Central Civil Service's (Classification, Control and Appeal) Rules, 1965,
framed under Art. 309.
Allowing the appeal to this Court,
HELD: (1) The Rules deal principally with the
procedure for disciplinary proceedings and penalties and appeals and reviews
against orders passed under the rules. They are applicable if disciplinary
proceedings had been taken against the respondent, but they do not make
disciplinary proceedings incumbent or obligatory whenever the services of a
person are terminated. In the present case there were no disciplinary
proceedings against the respondent.
[92 D-E] (2) The mere termination of the
service. by an apparently innocent order, of a Government servant in permanent
service, in the sense that he is entitled to remain in service until he reaches
the age of retirement, could be deemed, in a given case, to be a punishment.
But, in that event, there had to be a finding on the rule or order under which
the respondent was entitled to continue in service until he reached the age of
60. There is no reference to any such rule and there was no finding that any
punishment was imposed upon him or that his services were terminated as a
measure of punishment for any wrong done by him or for incompetence. [94 C; 93
G] P.L. Dhingra v. Union of India AIR 1958 SC 36 @ 47 referred to.
(3) Even assuming that the respondent was
constructively punished, there is no legal obligation to apply the Rules. The
legal obligation to apply them to every case of punishment, flows from the provisions
of Art. 311 and is confined to holders of posts covered by Art. 311. But the
provisions of Art. 311 do not apply to the respondent since they do not apply
to the holder of a post connected with defence. [94 E] L.R. Khurana v. Union of
India  3 SCR 908 followed.
(4) Terefore, when no disciplinary
proceedings are instituted, the Rules will not at all apply, and there is no
other rule dealing with the conditions under which the service, such as that of
the respondent. may be terminated.
Since there was no violation of any rule no
question of a conflict between a rule framed under Art. 309 and the doctrine of
pleasure contained in Art. 310, which applies to all Government servants
including those in the services connected with defence, arises in the present
case. [94 G] 88 (5) The High Court in dealing with the question considered the
view of a Divisional Bench of this Court in two cases, merely quoted the views
expressed by larger Benches of this Court, and then observed that these were
insufficient for deciding the point before it. The High Court did not act
correctly in thus skirting the views expressed by larger Benches of this Court.
The proper course for the High Court was to try to find out and follow the
opinions expressed by the larger Benches in preference to those expressed by
smaller Benches. This practice is followed even by this Court and has
crystallized into a rule of law.
If, however, the High Court was of opinion
that the views expressed by larger Benches of this Court were not applicable to
the facts of the present case it should have said so, giving reasons in
support. [92 A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 212 of 1975.
(Appeal by Special Leave from the Judgment
and Order dated 26-6-1974 of the Kerala High Court in A.S. No. 510/72).
L.N. Sinha, Sol. Genl. of India, Shaymla
Pappu and Girish Chandra for the appellant.
A.S. Nambiar for the respondent.
The Judgment of the Court was delivered by
BEG, J.--The Union of India and the Commander, Officerincharge, Naval Base,
Cochin, are the appellants before us by grant of special leave against a
judgment and decree of a Division Bench of the High Court of Kerala. The
Division Bench had affirmed the decision of a learned subordinate Judge
awarding Rs. 25,000/as damages, together with interest @ 6% per annum, to the
plaintiff-respondent for the illegal termination of the respondent's services.
The plaintiff respondent was serving as a Welder, Grade II, in the Civilian
Defence Forces at the Naval Base, Cochin, at the time of this allegedly illegal
termination of service by an order of 25th October, 1968, of the Govt. of
India, Ministry of Defence.
Special leave was granted on condition that
the appellants Will bear the costs of the respondent in any event.
The point of law sought to be canvassed
before us is: Does the doctrine that a Central Govt. servant holds his post
"at the pleasure of the President", contained in Article 310 of the
Constitution, authorise the passing of an order of termination of services,
without assigning any reason whatsoever, of the holder of a post
"connected with defence ?" There is no finding anywhere that the
services of the plaintiff respondent were terminated as a measure of punishment
for any wrong done by him or for incompetence, although, a perusal of the
pleadings would show that the appellants denied the assertions of the plaintiff
respondent that he was efficient and entitled to promotions as he had qualified
for them by passing certain tests.
The Subordinate Judge had awarded only Rs.
25,000-. out of a claim of Rs. 75,000/made on the ground that, but for illegal
termination of the service of the plaintiff-respondent, the-plaintiff would
have continued in service upto the age of 60 years and duty promoted instead of
being thrown out of service at the age of 41. The plaintiff respondent alleged
that the termination of his service, without giving any reason whatsoever, was
contrary to, rules made under Article 309. A glance at paragraph 4 of the
plaint shows that the violation of rules 89 relating to conduct of disciplinary
proceedings was alleged by the petitioner. In paragraph 5 of the plaint,
however, he alleged:
"As per the terms of appointment and the
rules governing the service of the petitioner,, he is entitled normally to
continue in service till the age of 60. If his service had not been terminated
as per the impugned order, the petitioner would have been entitled to continue
for a further period of 19 years and 8 months".
He proceeded to assert:
"Due to the illegal termination, the
petitioner had lost a valuable right vested in him by virtue of his appointment
and guaranteed by the Constitution of India and the rules framed there under
namely a right to continue in service for the full period of 19 years and 8
months and thus to gain a livelihood for himself and his family".
A perusal of the judgment of the Division
Bench shows that the only point really considered by it was whether the
pleasure of the President mentioned in Article 310 of the Constitution, can
over-ride rules made under Article 309 of the Constitution.
The High Court had explained away a passage
cited from State of U.P. & Ors., v. Babu Ram Upadhya(1) by observing that
it did not support the argument that rules made under Article 309 of the
Constitution did not control the pleasure of the President, under Article.310,
which was to be subject to matters otherwise expressly provided in the
Constitution. The passage so explained away runs follows :.
"If there is a specific provlsion in
some part of the Constitution giving to a Government servant a tenure different
from that provided for in Art.
310, that Government servant is excluded from
the operation of Art. 310. The said words refer, inter alia,, to Arts. 124,
148, 218 and 324 which provide that the Judges of the Supreme. Court, the
Auditor General, the Judges of the High Courts and the Chief Election
Commissioner shall not be removed from their offices except in the manner laid
down in those Articles. If the provisions of the Constitution specifically
prescribing different tenures were excluded from Art. 310, the purpose of that
clause would be exhausted and thereafter the Article would be free from any
other restrictive operation. In that event, Art. 309 and 310 should be read
together, excluding the opening words in the latter Article, namely,
"Except as expressly provided by this Constitution". Learned Counsel
seeks to confine the operation of the opening words in Art. 309 to the
provisions of the Constitution which empower other authorities to make rules
relating to the conditions of service of certain classes of public servants:,
namely Arts. 146(2), 148(5) and 229(2). That may:be so, but there is no reason
why Art. 310. should (1) A.I.R. 1961 S.C. 751.
8--1003 SCI/76 90 be excluded therefrom. It
follows that while Art. 310 provided for a tenure at pleasure of the President
or the Governor, Art. 309 enables the legislature or the executive, as the case
may be, to make any law or rule in regard, inter alia, to conditions of service
without impinging upon the overriding power recognised under Art. 310".
The Kerala High Court relied on Union of
India v. J. N. Sinha & Anr.,(1) to hold that doctrine of office held at the
pleasure of the President was subject to rules made under Article 309 of the
Constitution, and pointed out that it was held, inter-alia, by a Division Bench
of this Court (at p. 42):
"A Government servant serving under the
Union of India holds his office at the pleasure of the President as provided in
Article 310 of the Constitution. But this "pleasure" doctrine is
subject to the rules or law made under Article 309 as well as to the conditions
prescribed under Art.311 ".
The High Court also relied on State of Madhya
Pradesh & Ors. v. Shardul Singh,(2) where the same Division Bench of this
Court had held inter-alia (at p. 111 ):
"Article 310(1) of the Constitution
declares that every person who is a member of Civil service of a State or holds
any civil post in a State holds office during the pleasure of the Governor of a
State. But the pleasure doctrine embodied therein is subject to the other
provisions in the Constitution. Two other Articles in the Constitution which
cut down the width of the power given under Article 310 (1) are Articles 309
and 311. Article 309 provides that subject to the provisions of the
Constitution acts of the appropriate Legislature may regulate the, recruitment,
and conditions of service of persons appointed, to public. services and posts
in connection with the affairs of the Union or of any State. Proviso to that
'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 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 have effect subject
to the provisions of any such Act ." The High Court then referred to N.
Ramanatha Pillai v. State of Kerala & Anr.,(3) a decision of 5 learned
Judges of this Court, in which Ray CJ., speaking for the Constitution Bench of
this Court, (1) A.I.R. 1971 S.C. 40. (2)  (1) S.C.C. 108 at 111.
(3) A.I.R. 1973 S.C. 2641 at 2645.
91 while considering the power of the Govt.
to create, continue, and abolish a post said (at p. 2645):
"Article 309 provides that subject to
provisions of the Constitution, Acts of the
appropriate Legislature may regulate the recruitment and conditions of service
of persons appointed, to public services and posts in connection with the
affairs of the Union or of any State. Therefore, Acts in respect of terms and
conditions of service of persons are contemplated. Such Acts of Legislature
must however be subject to the provisions of the Constitution. This attracts
Article 310 (1). The proviso to Art. 309 makes it competent to the President or
such person as he may direct in the case of services and posts in connection
with the affairs of the Union and for the Governor of a State or such person as
he may direct in the case of services and posts in connection with the affairs
of the State, to make rules regulating the recruitment and the conditions of
service of persons appointed,, to such services and posts under the Union and
the State. These Rules and the exercise of power conferred on the delegate:
must be subject to Article 310. The result is. that Article 309 cannot impair
or affect the pleasure of the' President or the Governor therein specified.
Article 309 is, therefore, to be. read subject to Article 310".
The High Court, after citing the passage set
out above, said: "We do not understand the above passage as suggesting
that Article 310 cannot in any manner be controlled by Rules framed under
After a consideration of decisions of this
Court in this manner it -expressed its views as follows:
"These cases, we think, sufficiently
indicate that while it may be open to the PreSident or to the Governor to
dismiss a civil servant at pleasure, if Rules have been framed under Article
309 of the Constitution to regulate the mode and manner of termination of
service, these .have to be complied with. This, we think, is reasonable and
understandable enough on first principles. If the untrammelled pleasure of the
President has been subjected to Rules framed by the President himself in regard
to the manner of termination of service, the pleasure must be subject to such
The Division Benh of the High Court then recorded
"We are therefore of the opinion that in
the instant case, the Civil Services (Classification, Control and Appeal)
Rules, having been framed under Article 309 of the Constitution, the same had
to be followed before the respondent's service was terminated. The same not
having been admittedly complied with, the finding of the' Court below that the
termination is illegal was correct and requires no interference. No arguments
were addressed on the quantum of damages awarded".
92 We do not think that the difficulty before
the High Court could be resolved by it by following what it considered to be
the view of a Division Bench of this .Court in two cases and by merely quoting
the views expressed by larger benches of this Court and then observing that
these were insufficient for deciding the point before the High Court. It is
true that in each of the cases cited before the High Court, observations of
this Court occur in a context different from that of the case before us. But,
we do not think that the High Court acted correctly in skirting the views
expressed by larger benches of this Court in the manner in which it had done
this. The proper course for a High Court, in such a case, is to try to find out
and follow the opinions expressed by larger benches of this Court in preference
to those expressed by smaller benches of the Court That is the practice
followed by this Court itself.
The practice has now crystallized into a rule
of law declared by this Court. If, however, the High Court was of opinion that
the views expressed by larger benches of this Court were not applicable to the
facts of the instant case it should have said so giving reasons supporting its
point of view.
we have perused the Central Civil Service
(Classification, Control and Appeal) Rules of 1965, (hereinafter referred to as
'1955 Rules') which deal principally with procedure for disciplinary
proceedings and penalties and appeals and reviews against orders passed under
There is no rule there dealing with the
conditions under which a service such as that of the plaintiff respondent may
be terminated. We fail to see any rule made under Article 309 of the
Constitution which was violated by the impugned order of termination of service
of the plaintiff-respondent.
We do not consider ourselves called upon to. Decide
a question which has really not arisen in the case. before us.
The 1965 Rules are applicable when
disciplinary proceedings are taken. They do not make disciplinary proceedings
under the rules incumbent or obligatory whenever the services of a person
covered' by these rules are terminated.
The obligation to follow the procedure for
punishment laid down in the rules flows from the provisions of Article 311 of
the Constitution. And, as the opening words of Article 310 show, the doctrine
of office held at the pleasure of the' President does not apply to cases
covered by Article 311.
Rule 3 of the above mentioned rules begins. As
"3. Application.--(l ) These rules shall
apply to every Government servant including every civilian Government servant
in the Defence Services, but shall not apply to(a) any railway servant, as
defined in rule 102 of volume I of the Indian Railway Establishment Code, (b)
any member of the All India Services, (c) any person in casual employment, (c)
any person in casual employment, (d) any person subject to discharge from
service on less than one month's notice.
(e) any person for whom special provision is
made, in respect of matters covered by these rules, by or under 93 any law for
the time being in force or by or under any agreement entered into by or with
the, previous approval of the President before or after the commencement of
these rules, in regard to matters covered by such special provisions;
(2) Notwithstanding anything contained in
sub-rule (1), the President may by order exclude any class of Government
servants from the operation of all or any of these rules.
(3) Notwithstanding anything contained in
sub-rule (1), or the Indian Railway Establishment Code, these rules shall apply
to every Government servant temporarily transferred to a Service or post coming
within exception (a) or (e) in sub rule (1 ), to whom, but for such transfer,
these rules would apply.
(4) If any doubt arises(a) whether these
rules or any of them apply to any person, or (b) whether any person to whom
these rules apply belongs to a particular service the matter shall be referred
to the President, who shall decide the same".
Even if the parties were governed by these
rules, because the plaintiff held a civil post in one of the Defence;
Departments, yet there must be some violation
of one of these rules, which were no doubt framed under Article 309 read with
clause 5 of Article 148 of the Constitution, before any question of a conflict
between a rule framed under Article 309 and the provisions of Article 310 could
possibly arise. We fail to see such a conflict here.
These rules merely lay down procedure for
matters covered by Article 31 l of the Constitution. There is no doubt that
proceedings under Article 311 of the Constitution constitute an exception to
the doctrine of pleasure contained in Article 310 of the Constitution. But, in
the case before us, no question of any disciplinary proceedings has been
discussed because it did not arise at all. There is no finding that any
punishment was imposed upon the plaintiff-respondent. It may be that mere
termination of service, when the plaintiff respondent was holding a permanent
post and entitled to continue in service until 60 years of age, may constitute
punishment per seven when the termination of service is not meant as a
punishment. But, in that event,, there had to be a finding on the rule or order
under which the plaintiff was entitled to continue in service. until he reached
the age of 60 years. The High Court had cited no rule made under. Article 309
to show that there was any such provision.
In P.L. Dhingra v. Union of India(1) Das,
CJ., speaking for the majority of a Bench of five judges of this Court, said
(at p. 47):
"It has already been said that where a
person is appointed substantively to a permanent post in Government service.
(1) A.I.R. 1958 S.C. 36 at 47.
94 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 Art. 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 rights and brings about a premature end of his employment".
The propositions laid down in Dhingra's case
(supra) by this, Court mean that, unless a legally justifiable ground is made
out for the termination of the service of a Government servant. in permanent
service, in the sense that he is entitled to remain in service until he'
reaches the age of retirement, he could be deemed in a given case to be punished
by an apparently innocent order of termination of service. If, however, the
respondent belonged to a class of government servants the tenure or conditions
of whose service was subject to the over-riding and unqualified sway of the
power to terminate his services at will, by reason of Article 310(1) of the
Constitution, we doubt whether he could claim to be a "permanent"
servant, who could continue, as of right, in service until he reaches the age
of superannuation. At any rate, he could not be a "permanent"
Government servant of the same class as one protected by Article 311.
Even if we were to hold that the
plaintiff-respondent was constructively punished, the provisions of Article
311, unfortunately, do not apply to such a Government servant as the respondent
was. Whereas the power contained in Article 310 governs all Government
servants, including those in the services connected with defence, the benefits
of Article 311, which impose limitations on the exercise of this power in cases
of punishment, do not extend to those who hold posts "connected with
defence". Constitution Bench of this Court has held, after a review of
relevant authorities, this to be the position of the. holder of a post such as
that of the plaintiff-respondent in L. R: Khurana v. Union of India. (1) As the
plaintiff-respondent was not entitled to the protection of Article 311, the
only effect of the 1965 Rules upon his case is that they could be applied if disciplinary
proceedings had been taken against him as the holder of a post "connected
with defence". In other eases of such servants,. where no such
disciplinary proceedings are instituted (and none were started against the
plaintiff-respondent), the 1965 Rules, governing procedure for. punishments to
be imposed, will not apply at all.
There is no legal obligation to apply those
rules here. The legal obligation to apply them to every case of punishment,
flowing from Article 311, is confined to holders of posts covered by Article
311. On this question, we are bound by the decision of a bench of five learned
Judges of this Court in Khurana's case (supra).
(1)  3 S.C.R. 908.
95 We were asked to import the obligation to
apply the procedure prescribed by Article 311 to a case such as the one before
us by invoking the aids of Articles 14 and 16.
Apart from the fact that these .Articles
could not be invoked against a discrimination made by Constitutional provisions,
no such case was set up earlier. We cannot permit it at this stage.
The only ground on which the respondent had
assailed the order of termination of his service was non-compliance of 1965
Rules, which meant' that he claimed the protection of Article 311 of the
Constitution. But for the reasons given above, this protection is not available
to him. Therefore, this appeal must succeed.
Consequently, we allow this appeal, set aside
the judgment and decree of the High Court and ,dismiss the plaintiff's suit.
But: in the circumstances of the case, the appellant will, in keeping with the
undertaking given at the time of grant of special leave, bear the costs of both