Krishna Kumar Vs. Divisional Assistant
Electrical Engineer Central Railway [1979] INSC 118 (17 July 1979)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) FAZALALI, SYED MURTAZA VENKATARAMIAH, E.S. (J)
CITATION: 1979 AIR 1912 1979 SCR (1) 50 1979
SCC (4) 289
ACT:
Constitution of India, 1950, Article
311(1)-Power to remove an employee rests only with the person who appointed
him-A delegate's status is not enhanced to that of the delegator by virtue of
delegation of power of appointment- Date of appointment is the starting point
when the constitutional guarantee under Art. 311(1) becomes available to the
person holding a civil post.
HEADNOTE:
The appellant who was appointed as a Train
Lighting Inspector, Nagpur on July 11, 1974 by the Chief Electrical Engineer
was removed from service by respondent No. 1; the Divisional Assistant
Engineer, Central Railway Nagpur by his order August 31, 1976. The Writ
Petition filed by the appellant in the Bombay High Court challenging the order
of removal was dismissed summarily by a Division Bench of that Court.
Allowing the appeal by special leave, the
Court
HELD: 1. The order of removal is in patent
violation of the provisions of Article 311(1) of the Constitution. [53C]
2. Art. 311(1) of the Constitution provides
that 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. [52A]
3. Whether or not an authority is subordinate
in rank to another has to be determined with reference to the state of affairs
existing on the date of appointment. It is at that point of time that the
constitutional guarantee under Art. 311(1) becomes available to the person
holding, for example, a civil post under the Union Government that he shall not
be removed or dismissed by an authority subordinate to that which appointed
him. [52 F-G]
4. Delegation of the power to make a
particular appointment does not enhance or improve the hierarchical status of
the delegate. An officer subordinate to another will not become his equal in
rank by reason of his coming to possess some of the powers of that another. [53
A-B] The Divisional Assistant Electrical Engineer in the instant case does not
cease to be subordinate in rank to the Chief Electrical Engineer merely because
the latter's power to make appointments to certain posts has been delegated to
him the subsequent authorisation made in favour of respondent, in regard to
making appointments to the post held by the appellant cannot confer upon
respondent 1 the power to remove him. On the date of the 51 appellant's
appointment as a Train Lighting Inspector, respondent 1 had no power to make
that appointment. He cannot have, therefore, the power to remove him. [52H, 53
A- B]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 755 of 1978.
Appeal by Special Leave from the Order dated
21-10-1976 of the Bombay High Court (Nagpur Bench) in S.C.A. No. 4260/76.
R.K. Garg, Edward Faleire, V.J. Francis and
D.K. Garg for the Appellant.
R.P. Bhat and Girish Chandra for the
Respondents.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J. The appellant, Krishna Kumar, was appointed on May 30, 1966
as an Apprentice Mechanic (Electrical) after selection by the Railway Service
Commission and on the completion of his training period, he was appointed as a
Train Examiner (Electrical). On July 11, 1974 he was appointed as a Train
Lighting Inspector, Nagpur under an order passed by the Chief Electrical
Engineer. That the order of appointment was made by the C.E.E. is undisputed
and indeed there can be no controversy over it.
The list of officer declared to be heads of
departments shows that Chief Electrical Engineers are heads of their
departments. By an order dated August 31, 1976, the appellant was removed from
service by respondent 1, the Divisional Assistant Engineer, Central Railway,
Nagpur.
The appellant thereupon filed a Writ Petition
(No. 4260 of 1976) in the Bombay High Court to challenge the order of removal.
A Division Bench of the Nagpur Bench of the High Court dismissed the Writ
Petition summarily on October 21, 1976. Being aggrieved by that order the
appellant has filed this appeal by special leave.
The Special Leave Petition came up before
this Court on February 22, 1978 when a Bench consisting of Justice V.R. Krishna
Iyer and Justice Jaswant Singh adjourned the petition for four weeks in order
to enable the respondents to file an affidavit stating as to (i) who appointed
the petitioner, with special reference to the designation of the Officer who
made the order of appointment and (ii) who removed the petitioner from service,
with special reference to the designation of that Officer. Pursuant to that
direction, two affidavits were filed by Shri S.P. Sarathy, Divisional Assistant
Electrical Engineer, Central Railway, Nagpur. The petitioner filed his
rejoinder affidavit on February 20, 1978. On a consideration of these
affidavits the Court on April 3, 1978 granted special leave to the appellant to
file this appeal.
52 Article 311 (1) of the Constitution
provides that 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. The simple question for determination is
whether, as alleged by the appellant, he was removed from service by an
authority subordinate to that which had appointed him.
The relevant facts are but these and these
only: The appellant was appointed as a Train Lighting Inspector under an order
issued by the Chief Electrical Engineer and was removed from service under an
order passed by the Divisional Assistant Electrical Engineer, Central Railway,
Nagpur. The narrow question, therefore, for consideration is whether the
Divisional Assistant Electrical Engineer is subordinate in rank to the Chief
Electrical Engineer. None of the affidavits filed by Shri Sarathy, who passed
the order of removal says that the post of Divisional Assistant Electrical
Engineer is equivalent to that of the Chief Electrical Engineer in the official
hierarchy. That the former is not higher in rank than the latter is self-
evident. In the circumstances, it seems clear that the appellant was removed
from service by an authority which is subordinate in rank to that by which he
was appointed.
In defence of the legality of the order of
removal, counsel for the respondents relies on paragraph 2 of respondent 1's
affidavit, dated January 7, 1978, wherein he has stated that the power to make
appointments to the post of the Train Lighting Inspector was delegated to
certain other officers including the Divisional Assistant Electrical Engineer.
It is urged that since the Div. Asstt. Elect. Engineer has been given the power
to make appointments to the post of the Train Lighting Inspector; he would have
the power to remove any person from that post. We cannot accept this
contention. Whether or not an authority is subordinate in rank to another has
to be determined with reference to the state of affairs existing on the date of
appointment. It is at that point of time that the constitutional guarantee
under Art. 311 (1) becomes available to the person holding, for example, a
civil post under the Union Government that he shall not be removed or dismissed
by an authority subordinate to that which appointed him. The subsequent
authorization made in favour of respondent 1 in regard to making appointments to
the post held by the appellant cannot confer upon respondent 1 the power to
remove him. On the date of the appellant's appointment as a Train Lighting
Inspector, respondent 1 had no power to make that appointment. He cannot have,
therefore, the power to remove him.
53 Besides, delegation of the power to make a
particular appointment does not enhance or improve the hierarchical status of
the delegate. An Officer subordinate to another will not become his equal in
rank by reason of his coming to possess some of the powers of that another. The
Divisional Engineer, in other words, does not cease to be subordinate in rank
to the Chief Electrical Engineer merely because the latter's power to make
appointments to certain posts has been delegated to him.
Since the appellant was appointed by the
Chief Electrical Engineer and has been removed from service by an order passed
by respondent 1 who, at any rate, was subordinate in rank to the Chief
Electrical Engineer on the date of appellant's appointment, it must be held the
respondent 1 had no power to remove the appellant from service. The order of
removal is in patent violation of the provisions of Article 311 (1) of the
Constitution.
For these reasons we allow the appeal, set
aside the order passed by the High Court and hold that the order dated August
31, 1976 passed by respondent 1 removing the appellant from service is
unconstitutional and, therefore, of no effect. The appellant must accordingly
be deemed to continue in service until, if so advised, the government takes
appropriate steps to bring his service to an end.
Respondents will pay the costs of the appeal
to the appellant.
V.D.K. Appeal allowed.
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