# Applications dismissed. PARSHOTAM LAL DHINGRA v. UNION OF INDIA - **Citation:** [1958] 1 S.C.R. 828 - **Court:** Supreme Court of India - **Decided:** 1958 - **Bench:** S. R. Das, Venkatarama Aiyar, S. K. Das, A. K. Sarkar, V1vrAN BosE - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/applications-dismissed-parshotam-lal-dhingra-v-union-of-india-1435 - **Pages:** 44 ## Headnote Union Service-Employee's protection under the Constitution.-Availability-"Dismissed or ·removed or reduced in rank;' Meaning of-Railway Servant reverted to substantive post in lower class, if reduced in rank-Constitution of India, Arts. 311, 310. The appellant, Parshotam Lal Dhingra, was appointed to the Indian Railway Service as a Signaller (Telegraphist) in 1924 and was promoted to the post of Chief Controller in 1950, both the posts being in class III Service. On July 2, 1951 he was appointed to officiate in class II SerVice as Asstt. Superintendent Railway Telegraphs. On certain adverse remarks made against him in his Confidential Repo11 of India relief reverts to Class ill appointment." Against this order the appellant moved the High Court under Art. 226 of the Constitution. The Single Judge who heard the matter held that the order was invalid as the provisions of Art. 311 (2) of the Constitution had not admittedly been complied with. The Division Bench on appeal, however, set aside the order of the Single Judge and dismissed the appellants writ application. The question for decision was whether the order of the General Manager amounted to a reduction in rank within the meaning of Art. 311 (2) of the Constitution and the appellant was entitled to a reasonable opportunity of showing cause against the order. . Held, (per Das, C. J., Venkatarama Aiyar, S. K. Das, A. K. Sarkar JJ., Vivian Bose J., dissenting) that the order of reversion made against the petitioner did not amount to a reduction in rank within the meaning of Art. 311 (2) of the Constitution and he was not entitled to the protection of that Article. Like Art. 310 of the Constitution, which makes no distinction between persons holding permanent or temporary posts in the matter of their tenure being dependent on the pleasure of the President or the Governor, Art. 311, which is in the nature of a proviso to Art. 310, also makes no distinction between permanent and temporary posts and extends its protection equally to all Government servants holding permanent or temporary posts or officiating in any of them . . Laxminarayan Chiranjilal Bhargava v. The Union of India, I.L.R. (1955) Nag. 893; Engineer-in-Chief, Army Head Quarters v. C. A. Gupta Ram, A.I.R. (1957) Punj. 42; State of Ptlhjab v. S. Sukhbans Singh, A.I.R. (1957) Punj. 191 and Chironjilal v. U'lllion of India, A.I.R. (1957) Raj. 81, overruled. But the protection of Art. 311 can be available only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. These were the major punishments evolved by the Service Rules and Rules of the Railway Code, and well-understood as such, against which protection was sought to be provided by the Rules. These protections were in due course incorporated in s. 240 of the Government of India Act, 1935, and reproduced in Art. 311 of the Constitution, thus qualifying the principle embodied in Art. 310 (1). Venkataraman v. The Union of India, (1954) S.C.R. 1150, referred to. Jayanti Prasad v. The State of Uttar Pradesh, A.I.R. (1951) All. 793; Shri.nvas Ganesh v. Union of India, A.I.R. (1956) Born. 455; Jatindra Nath Biswas v. R. Gupta, A.l.R. 830 SUPREME COU ## Text _Characters 0–39,973 of 100,358. This is a partial read: ask again with offset=39973 for what follows._ 828 SUPREME COURT REPORTS (19581 1957 It is true that the Collector of Customs has used the Leo Roy Frty words "punishment" and "conspiracy", but those The Supe~inwulent words were used in order to bring out that each of the Dis1ric_1 Jail, 'two petitioners was guilty of the offence under Ammsar s. 167 ( 8) of the Sea Customs Act. The petitioners Das c. J. were not and could never be charged with criminal conspiracy before the Collector of Customs and therefore Art. 20(2) cannot be invoked. In this view of the matter it is not necessary for us, on the present occasion, to refer to the ·case of Maqbool Hussain v. The State of Bombay(') and to discuss whether the words used in Art. 20 do or do not contemplate only proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal as ordinary understood. In our opinion, Art. 20 has no application to the facts of the present case. No other points having been urged before us, there applications must be dismissed. 1957 . Applications dismissed. PARSHOTAM LAL DHINGRA v. UNION OF INDIA (S. R. Das, C. J., Venkatarama Aiyar, S. K. Das, A. K. SARKAR and V1vrAN BosE JJ.) Union Service-Employee's protection under the Constitution.-Availability-"Dismissed or ·removed or reduced in rank;' Meaning of-Railway Servant reverted to substantive post in lower class, if reduced in rank-Constitution of India, Arts. 311, 310. The appellant, Parshotam Lal Dhingra, was appointed to the Indian Railway Service as a Signaller (Telegraphist) in 1924 and was promoted to the post of Chief Controller in 1950, both the posts being in class III Service. On July 2, 1951 he was appointed to officiate in class II SerVice as Asstt. Superintendent Railway Telegraphs. On certain adverse remarks made against him in his Confidential Repo11 of India relief reverts to Class ill appointment." Against this order the appellant moved the High Court under Art. 226 of the Constitution. The Single Judge who heard the matter held that the order was invalid as the provisions of Art. 311 (2) of the Constitution had not admittedly been complied with. The Division Bench on appeal, however, set aside the order of the Single Judge and dismissed the appellants writ application. The question for decision was whether the order of the General Manager amounted to a reduction in rank within the meaning of Art. 311 (2) of the Constitution and the appellant was entitled to a reasonable opportunity of showing cause against the order. . Held, (per Das, C. J., Venkatarama Aiyar, S. K. Das, A. K. Sarkar JJ., Vivian Bose J., dissenting) that the order of reversion made against the petitioner did not amount to a reduction in rank within the meaning of Art. 311 (2) of the Constitution and he was not entitled to the protection of that Article. Like Art. 310 of the Constitution, which makes no distinction between persons holding permanent or temporary posts in the matter of their tenure being dependent on the pleasure of the President or the Governor, Art. 311, which is in the nature of a proviso to Art. 310, also makes no distinction between permanent and temporary posts and extends its protection equally to all Government servants holding permanent or temporary posts or officiating in any of them . . Laxminarayan Chiranjilal Bhargava v. The Union of India, I.L.R. (1955) Nag. 893; Engineer-in-Chief, Army Head Quarters v. C. A. Gupta Ram, A.I.R. (1957) Punj. 42; State of Ptlhjab v. S. Sukhbans Singh, A.I.R. (1957) Punj. 191 and Chironjilal v. U'lllion of India, A.I.R. (1957) Raj. 81, overruled. But the protection of Art. 311 can be available only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. These were the major punishments evolved by the Service Rules and Rules of the Railway Code, and well-understood as such, against which protection was sought to be provided by the Rules. These protections were in due course incorporated in s. 240 of the Government of India Act, 1935, and reproduced in Art. 311 of the Constitution, thus qualifying the principle embodied in Art. 310 (1). Venkataraman v. The Union of India, (1954) S.C.R. 1150, referred to. Jayanti Prasad v. The State of Uttar Pradesh, A.I.R. (1951) All. 793; Shri.nvas Ganesh v. Union of India, A.I.R. (1956) Born. 455; Jatindra Nath Biswas v. R. Gupta, A.l.R. 830 SUPREME COURT REPORTS [1958] J9J7 (1954) Cal. 383; Rabindra Nath Das. v. The General Manager, Eastern Railway, (1955) 59 C.W.N. 859; Jatindra Nath Parshotam Lal Mukher3"ee v. The Government of the Union of India, (1957) Dhingra v. 61 C.W.N. 815; Ahmad Sheikh v. Ghulam Hassan, A.LR. l"he U11io11 of I11dia (1957) J. & K. 11; Ganesh Balkrishna Deshmukh v. The State of Madhya Bharat, A.I.R. (1956) M.B. 172; D. P. Raghunath v. The State of Coorg, A.l.R. (1957) Mys. 8; M. V. Vichoray v. The State of Madhya Pradesh, A.I.R. (1952) Nag. 288; Kanta Charan Srivastava v. Post Master General, A.LR. (1955) Pat. 381 and Sebastian v. State, A.I.R. (1955) Tr. Co. 12, approved. One test for determining whether the termination of service was by way of punishment or otherwise is to ascertain whether under the Service Rules, but for such termination, the servant has the right to hold the post. In the three cases of (1) substantive appointment to a permanent post, (2) temporary appointment for a fixed term and (3) a temporary appointment which has ripened into a quasi-permanent status under the Temporary Service Rules, where such a right exists, the servant will be entitled to the protection of Art. 311. Conversely, where no such right can exist, as in the case of a probationary or officiating appointment to a permanent or temporary post or where the service has not ripened into a quasi-permanent status, and under the general law the service can be terminated on reasonable notice, the termination of service caimot amount to a punishment and attract the Article. Broadly speaking, Art. 311 (2) can apply to those cases where the Government servant, if in private employment, could maintain an action for wrongful dismissal, removal or reduction ill rank. So where the Government has, by contract, express or implied, or under the Rules, the right to terminate the service at any time, such termination, in the manner provided in the contract or under the Rules, cannot attract the provisions of Art. 311. That does not, however, mean that_ the terminatfon of service of a servant who has no right to the post can ne.ver be a dismissal or removal by way of punishment. Although in such a termination the actual motive of the Government must be wholly irrelevant, where it expressly chooses to penalise the _servant for misconduct, negligence, inefficiency or the like by inflicting on him the punishment of dismissal, removal or reduction, the requirements of Art. 311 must be complied with. Satish Chander Anand v. The Union of India, (1953) S.C.R. 655; Shyam Lal v. The State of Uttar Pradesh, (1955) 1 S.C.R. 26 and Shrinivas Ganesh v. Union of India, L.R. 58 Born. 673, referred to. A reduction in rank must, similarly, be a punishment if it carries penal consequences with it and the two tests to be applied are (1) whether the servant has a right to the post of the rank or (2) whether evil consequences au ch as forfeiture of pay or allowances, loss of seniority in his substantive rank, stoppage or postponement of future S.C.R. SUPREME COURT REPORTS 831 chances of.promotion, follow as a result of the order. Where 1957 either of these tests applies, the reduction in rank must be one within the meaning of Art. 311 (2) of the ConstituPar~;:f~;a Lal tion and attract its protection., v. In the instant case, the appellant was holding an officiat- The Union of J11diP ing post and had no right under the rules of the Railway Code to eontinue in it. Under the general law . such appointment was terminable at any time on reasonable notice, and the reduction could not operate as a forfeiture of any right. The order of the General Manager visited him with no evil consequences. Consequently, he was not reduced in rank by way of punishment. · Per Bose J.-While there can be no doubt that Art. 311 applies to all classes of Government Servants whether permanent, quasi-permanent, officiating, temporary or on probation and that the words dismissal, removal and reduction in rank used therein have a special meaning, that Article, properly construed, cannot be confined to the penalties prescribed by the Service Rules. The gist of it is neither the form of the action nor the procedure nor what operated in the mind of the competent authority. The real test is whether evil consequences -0ver . and above those that would ensue from a "contractual termination" are likely to ensue. If they are, Art. 311 is attracted even though such evil consequences are not prescribed as "penalties" under the Rules. Though the conditions of service prescribed by the Rules can be varied unilaterally in some cases because of the /'pleasure" of the President, they cannot be ignored as long as they stand, and if they are infringed while in force, Art. 311 will be attracted in an approfriate case. Satish Chandra Anand v. Union o India, (1953) S.C.R 655 and Shyam Lal v. State of Uttar Pradesh, (1955) S.C.R. 26, referred to. Nor can the protections afforded by Art. 311 be nullified by a splitting up of the order. . In the present case the General Manager~s- remarks in the confidential file, which formed a part of the operative order and was its real foundation, clearly indicated the mischief, that the appellant was not to be promoted to a like post until in the opinion of some competent Officer he had made good his previous short-comings. That was an evil consequence, over and above that which would follow from a mere "contractual termination" of his engagement in the higher post, and so was sufficient to attraet the protection of Art. 311. C1v1L APPELLATE JURISDICTION: Civil Appeal No. 65 of 1957. Appeal from the judgment and order · dated January 1, 1956, of the Punjab High Court (Circuit Bench) at Delhi in Letters Patent Appeal No. 28 of 1955, arising out .of the judgment and_ order dated 19$7 Parshotan1 Lal Dhingra v. 832 SUPREME COURT REPORTS (19581 April 15, 1955, of the Single Judge, of the Circuit Bench of the Punjab High Court in Civil Writ No .. 36...D of 1955. The Union of India A. N. Grover and P. S. Safeer, for the appellant. R. Ganapathy Iyer and R. H .Dhebar, for the respondent. Das C.J. Frank Anthony and C. P. Aggarwala, for the intervener. 1957. November 1. The judgment of S. R. Das C.J., Venkatarama Aiyar, S. K. Das and A. K. Sarkar J,T. was delivered by S. R. Das C. J. Bose J. delivered a separate judgment. DAs C. J.-This appeal has been filed with a certificate of fitness granted by the Punjab High Court on August 20, 1956. It is directed against the judgment and order passed by a Division Bench of that court on January 19, 1956, in Letters Patent Appeal No. 28 of 1955, reversing the judgment and order o( Mr. Justice Harnam Singh pronounced on April 15, 1955, whereby his Lordship had allowed the appellant's application being Civil Writ No. :J6-D of 1955 and set aside the order passed by the General Manager, Northern Railway on August 19, 1953, reverting the petitioner from the post of Signal and Tele-communication Engineer, (Telegraphs) in Class II Service where the appellant was officiating to his substantive post in Class. III Service. This Appeal raises a very important question about the construction of art. 311 of the Constitution. The facts are shortly as follows :-In August 1924 the ap:pellant joined the railway service as a Signaller (Telegraphist). As a result of selection, he was promoted as Section Controller in 1942 and as Deputy Chief Controller in 194 7 and as the Chief Controller in 1950. All these posts were in Class III service. On March 31, 1951, seven candidates, including the appellant, appeared before a selection board constituted for selecting a candidate for the post of Assistant Superintendent Railway Telegraphs, which was a gazetted post in Class II Officer's cadre. The appellant was selected out of the seven candidates for this post. On July 2, 1951, a notice of appointment was issued from the headquarters of the Eas~ Punjab Railway, S.C.R. SUPREME COURT REPORTS 833 Delhi, notifying that "Mr. Parshotam Lal, Officiating 1957 Chief Controller, is appointed to officiate in Class II Parshotam Lal service as Asstt. Spdt. Rly. Telegraphs, Headquarters Dh~gra Office vice Mr. Sahu Ram whose term of temporary The Unio~ of Ind/" re-employment expires on the afternoon of 3rd July, D;; c. 1. 1951". The applicant actually relieved Mr. Sahu Ram in. the afternoon of July 3, 1951. It appears that on April 28, 1953, one Gouri Shankar S.S.T.E.I./Hd. Qrs. made certain adverse remarks against the appellant in his confidential report for the year ending March 31, 1953. This confidential report came before Shri S. Sen, C.S.T.E., on May 25, 1953, who confirmed the views expressed by Shri Gouri Shankar and added his own opinion which was also adverse to the appellant. According to the usual practice obtaining in the office the aforesaid remarks were placed before the General Manager, Shri Karnail Singh, who on June 11, 1953, remarked thereon as follows : "I am disappointed to read these reports. He should revert as a subOrdinate till he makes good the short-comings noticed in this chance of his as an officer. Portions underlined red to be communicated." The adverse remarks against the appellant in the confidential report for the year ending March 31, 1953, which were communicated to the appellant for his information by a confidential letter No. E-106/180 dated June 29, 1953, were as follows: " ........ He is, however, inclined to be hasty in his decisions. His office work is scrappy and does not show attention to detail. His relations with staff as well as officers have not been happy. He has displayed a tendency to resort freely to transfers and punishment oi staff, as a means of correcting their faults and in regard to officers has not maintained the proper tone and approach in official notings, discussions and letters to Divisions. The above short-comings have been brought to his notice on a number of occasions both in person and in writing, without any improvement." Remarks of Shri S. Sen, C.S.T.E. " ........ This officer suffers from an inflated L2SC/ 6/IP Vl-7 19:S7 Pwshot- Loi Dhingra v. Tire Un/qn of India 834 SUPREME COURT REPORTS Cl958J idea of self importance. His ways and manners require radical change if he desires to have a successful career as an officer." Remarks of the General Manager. "I am disappojnted to read these reports ........ " On July 24, 1953, the appellant, who had by this time earned two increments on July 4, 1952 and July 4, 1953, made a representation against the remarks made against him. On August 19, 1953, however notice No. 940-E/14 (E.I.A.) was issued by the General Manager (P) to the following effect: ''Shri Bishambar Nath Chopra, Instructor Railway Training School, Saharnpur, is transferred to- Headquarters office and appointed to officiate in Class II service as Assistant Signal and Tele-communication Engineer (Telegraphs) vice Shri Parshotam Lal Dhingra, who on relief reverts to Class III appointment." The appellant on August 20, 1953, appealed to the General Manager for reconsideration and · thereafter on October 19, 1953, appealed to the Railway Board and made a representation also to the President of India. On February 2, 1955, the Railway Board wrote to the General Manager as follows : "With reference to your letter No. 3780 dated the 30th December, 1953, the Board desires that you should inform Shri Parshotam Lal Dhingra that his reversion for generally unsatisfactory work will stand, but that this reversion will not be a bar to his being considered again for a promotion in the future if his work and conduct justify. He should also be informed that he has, in his representation, used language unbecoming of a senior official, and that he should desist from this in future. You may watch his work up to the end of March, 1955 and judging from his work and conduct, you may treat him as eligible for being considered for promotion as Assistant Transportation Superintendel).t in the Selection that may be made after March 1955." This was communicated to the petitioner on February 17, 1955. S.C.R. SUPREME COURT REPORTS 835 In the meantime the petitioner had on February 9, 19.S7 1955, filed his writ petition under Art. 226 of the ParsTtotallt Lal Qmstitution. Mr. Justice Harnam Singh took the . D";!"'. view that the petitioner had been punished by being The Union of India xedUCed in rank without being given an opportwiity DasC.J. to show cause against the· action proposed to be taken in regard to him and that consequently the order was invalid for non-compliance with the provisions of Art. 311 (2) of the Constitution. On a Letters Patent Appeal filed by the Union of India, a Division Bench (Bhandari C. J. and Falshaw J.) reversed the order -0f Harnam Singh J. and dismissed the petitioner's wri• application. The High Court having subsequently certified that it was a fit case fot appeal to thts Court, the petitioner has now come up on appeal before us &n4 the question for our decision is whether the order passed by the General Manager on August 19, 1953, amounted to a reduction in rank within the meaning of Art. 311 (2) of the Constitution. for if it did then the order must be held to be invalid as the requirements of that artiCle had admittedly not.._been ci>mplied with. Under the English Common Law all servants of the Crown held- office during the pleasure of the Crown and were liable to be dismissed at any time and without any reason being assigned for such msmissal. No action lay against the Crown in respect of such dismissal, even though it were contrary to the express term of the contract of employment, for the theory wal!i that the Crown could not fetter its future ~xecutive action by entering into a contract in matters which conce:rned the welfare of the State. A servant of the Crown could not at Common Law sue the Crown even for the arrears of his salary, and his claim could be • only on the bounty of the Crown. The established notion was that the implied condition between the Crown and its servant was that the latter held his office during the pleasure of the Crown, no matter whether it had been referred to when the engagement had been made or not and that public i>olicy demanded this qualification. (See per Lord Blackburn in 836 SUPREME COURT REPORTS (1900} 1957 Mulvenna v. The Admiralty('). This rule was. Parshotam Lal applied in full force in Lucas v. Lucas and High Dhi~ Commissioner for India('), where it was held that The Union of India the sterling overseas pay of an Indian Civil Servant was not a debt which could be attached in satisfac-· Das C.J. tion of an order for the payment of alimony. In the State of Bihar v. Abdul Majid("), however, this Cour~ held, for reasons stated in the judgment delivered by Mahajan C. J. that the Indian Law has not adopted the rule of English Law on the subject in its entirety. Turning to our Statute Law, we find that in the Government of India Act, 1915 (5 & 6 Geo. V. Ch. 61), as originally enacted, theretwas no reference to this doctrine of the English Common Law. By s. 45 of the Government of India Act, 1919 (9 & 10 Geo. V. Ch. 101) read with Part I of the second schedule to that Act several sections, including s. 96-B, were introduced into the Government of India Act; 1915 (hereinafter called the "1915 Act"). The relevant portion of s. 96-B was as follows : "96-B ( 1). Subject to the provisions of this Act and the rules made thereunder, every person in the civil service of the Crown in India holds office during His Majesty's pleasure, and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may be dismissed by any authority subordinate to that by which he was appointed and the Secretary of State in Council may (except so far as he may provide by rules to the contrary) re-instate any person in that service who has been dismissed." ' Sub-section (2) of that section empowered the Secretary of State in Council to make rules for regulating the classification of the Civil Services in India, the method of recruitment, the conljlitions of service, pay and allowances and discipline and conduct and sub· section ( 4) declared that all service rules then in force had been duly made and confirmed the same. The point to be noted is that s. 96-B for the first time gave a statutory recognition and force to the English Com- <'l (1926) s.c. 842. fl 9S4J S.C.R. 786. (') L.R. (1943) P. 68. S.C.R. SUPREME COURT REPORTS 837 mon Law rule that the servants of the Crown held 1957 their Offices during the pleasure of the Crown and at Parshotam Lalthe same time imposed one important qualification Dh~gra upon the exercise of the Crown's pleasure, namely, The Unio~ of India .that a servant might not be dismissed by .an authority subordinate to that by which he had been appointed. Section 96-B (1) was reproduced as sub-ss. (1) and (2) of s. 240 of the Government of India Act, 1935 (26 Geo. v~ Ch. 11), (hereinafter referred to as the 1935 Act) and a new sub-section was added to s. 240 as sub-s. (3). The relevant portions of s. 240 of the 1935 Act are set out·below : "240 ( 1) Except as expressly provided by this Act, every person who is a member of a Civil Service of the Crown in India, or holds any civil post under th~ Crown in India, holds office during His Majesty's pleasure. (2) No such person as aforesaid shall be dismissed :(rom the service of His Majesty by any authority subordinate to that bt which he was appointed. (3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the aciion proposed to be taken in regard to him; " . . . . . . . . . . . . . . . . . . . . . . . . ,. . . . . . . . . . . . . . Then followed a proviso which made sub-s, (3) inapplicable to certain persons and then came sub-s. ( 4) providing for compensation for premature termination of employment in certain cases which· it is not necessary to set out here. The rule making power given.bys. 96-B (2) of the 1915 Act was reproduced in s. 241 of the 1935 Act. Section 276 of the 1935 Act, like s. 96-B ( 4) of the 1915 Act, continued in force all the rules made under the last mentioned Act, while the existing laws were contmued by s. 292. It should be noted that the opening words of s. 96-B (1), namely, "Subject to the provisions of this Act and the rules made thereunder" were substituted by the words "Except as expressly provided by this Act." The effect of this will be discussed hereafter. Subsection· ( 1) adopted the English Common Law rule regarding the pleasure of the Crown but imposed on it DasC.J. 838 SUPREME COURT REPORTS [19581 1957 two qualifications by two separate sub-sections. SubParslootam Lal section (2) reproduced the qualification which had Dh~~a been imposed by s. 96-B (1), namely that a servant 1~e Union of India of the class therein mentioned must not oe dismissed D , by an authority sub.ordinate to that by which he had as c .•. been appointed and sub-s. (3) introduced a still more important qualification on the exercise of the Crown's pleasure, namely, that no such servant must be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Reduction in rank was not referred to ins. 96-B (1) but was for the first time added to dismissal in sub-s. ( 3). Then came our Constitution on January 26, 1950. Part XIV deals with "Services under the Union and the States". Chapter I contains seven sections grouped under the heading "Services". Section 240(1) of the 1935 Act has been substantially reproduced in Art. 310 (1) and sub-ss. (2) and (3) of s. 240 have become Art. 311(1) and (2), while s. 276 of the 1935 Act, which continued the existing rules in force, has been embodied in Art. 313. Article 310(1) and Art. 311 omitting the proviso to cl. (2) are as follows : "310 (1) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India Service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person 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 of the State. · 311 (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 tb.e action proposed tci be taken in regard to him : Provided ................................... . S.C.R. SUPREME COURT REPORTS 839 (3) If any question arises whether it is reasonably 1957 practicable to give any person an opportunity of Parshotam Lal showing cause under clause (2), the decision thereon of lt>li~gra the authority empowered to dismiss or remove such Tlie Union of flrdia person or to reduce him in rank, as the case may be, o;;;C, J. shall be final." To summarise: As under s. 96-B(l) of the 1915 Act and s. 240(1) of the 1935 Act, the persons specified therein held office during the pleasure of the Crown, so under Art. 310(1) they hold their office during the pleasure of the President or of the Governor, as the case may be. The opening words of Art. 310( 1), namely, "Except as expressly provided by this Constitution'', reproduce the opening words of s. 240 ( 1) of the 1935 Act, substituting the word "Constitution" for the word "Act". The exceptions contemplated by the opening words of Art. 310( 1) quite clearly refer inter alia, to Arts. 124, 148, 218 and 324 which respectively provide expressly that the Supreme Court Judges, the Auditor-General, the High Court Judges and the Chief Election Commissioner shall not be removed from his office except by an order of the President passed after an address by each House of Parliament, supported by the requisite majority therein specified, has been presented to him in the same session for such removal on the ground of proved misbehaviour or incapacity. These are clearly exceptions to the rule embodied in Art. 310(1), that public servants hold their office during the pleasure of the President or the Governor as the case may be. Subject to these exceptions our Constitution, by Art. 310(1), has adopted the English Common Law rule that public i.-ervants hold office during the pleasure of the President or Governor, as the. case may be and has, by Art. 311, imposed two qualifications on the exercise of such pleasure. Though the two qualifications are set out in a separate article, they quite clearly restrict the operation of the rule embodied in Art. 310(1). In other words the provisions of Art. 311 operate as a proviso to Art. 310(1). All existing laws have been continued by Art. 372, some of which, e.g., the Code of Civil Procedure make it possible for a public servant to enforce his claims 840 SUPREME COURT REPORTS [19581 1957 against the State. It has accordingly been held by this Parshotam Lal Court in the State of Bihar v. Abdul Majid (supra) Dh7• that.the English Common Law rule regarding the holdTh• Unio~ of Indiaing of office by public servants only during the pleasure Das c. 1. of the Crown has not been adopted by us in its entirety and with all its rigorous implications. Passing on to Art. 311 we find that it gives a two fold protection to persons who come within the article, namely, (1) against dismissal or removal by an authority subordinate to that by which they were appointed and (2) against dismissal or removal or reduction in rank without giving them a reasonable opportunity of showing cause against the action proposed to be taken in regard to them. Incidentally it will be noted that the word "removed" has been added after the word "dismissed" in both .els. ( 1) and ( 2) of Art. 311. Upon Art. 311 two questions arise, namely, (a) who are entitled to the protec:ion and (b) what are the ambit and scope of the protection ? Re (a).-Articles 310 and 311 are two of the articles which have been grouped under the heading "Services" in Chapter I of Part XIV which deals with the "Services under the Union and the States". It is well known that there are different species of Government services. In the absence of a contract to the contrary the terms of employment of persons in different services are governed by rules made by the appropriate authorities to which reference will hereafter be made. The strength of a service or a part of a service sanctioned as a separate unit is, in the Fundamental Rules. s. III, Ch. II, r. 9( 4), called the cadre. Each cadre consists of a certain number of posts. According to r. 9(22) of the Fundamental Rules, a permanent post means a post carrying a definite rate of pay sanctioned without limit of time. In each cadre there may be and often is a hierarchy of ranks. Due to rush of business or other exigencies some "temporary posts" are often created. A temporary post is defined in r. 9(30) to mean a post carrying a definite rate of pay sanctioned for a limited time. These temporary posts are very often outside the cadre -and are usually for one year and are renewed from year to year, although some of them may be created for a certain specified S.C.R. SUPREME COURT REPORTS 841 period. The conditions of service of a Government 1957 servant appointed to a post, permanent or temporary, Parshotam· Lat are regulated by the terms of the contract of employDh';cra · ment, express or implied, and subject thereto, by the The Unio~,of Indif; rules applicable to the members of the particular .service. The appointment of a Government servant to a permanent post may be substantive or on probation or <>n an officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a "lien" on the post. This "lien" is defined in Fundamental Rule s. III, Ch. II, r. 9(13) as the title of a Government servant to hold substantively a permanent post, including a tenure post, to which he has been appointed substantively. The Government cannot terminate his service unless it is entitled to do so (1) by virtue of a special term of the contract of employment, e.g., by giving the requisite notice provided by the contract or (2) by the rules governing the conditions of his service, e.g., on attainment of the age of superannuation prescribed by the rules, or on the fulfilment of the conditions for compulsory retirement or, $Ubject to certain safeguards, on the abolition of the post or on being found guilty, after a proper enquiry on notice to him, of misconduct, negligence, inefficiency or any other disqualification. An appointment to a permanent post in Government service on probation means, as in the case of a person appointed by a private employer, that the servant so appointed is taken on trial. The period of probation may in some cases be for a fixed period, e.g., for six months or for one year or it may be expressed simply as "on probation" without any specification of any period. Such an employment on probation, under the ordinary law of master and servant, comes to an end if during or at the end of the 1 probation the servant so appointed on trial is found unsuitable and his service is tel'minated by a notice. An appointment to officiate in a permanent post is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive oppointment has yet been made to that DasC.J • 842 SUPREME COURT REPORTS [1958] r9s1 appointment has yet been made to that post. Such an ParshoJ•m i..i officiating appointment comes to an end on the return Dltingra of the incumbent substantively holding the post from v. - ---leave in the former case or on a substantive appointTh• Union•! India ment being made to that permanent post in the latter - case or on the service of a notice Of termination as DasC,j. · a.greed - upon or as may be reasonable unrier the ordinary law. It is, therefore, quite clear that appointment to a permanent post in a Government service, either on probation, or on an officiating basis, is, from the -very nature of such : employment, itself of a transitory character and, in the absence of any special pontract or specific rule regulating the conditions of -the service,. the .implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. In short, in the case· of an appointment to a permanent post in a Government service on ·probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. Likewise an appointment to a temporary post in a Government service may be substantive or on probation or on an officiating basis. Here also, in the absence of any special stipulation or ;my specific service rule, the servant so appointed acquires no right to the post and hiR service can be terminated at any time except in one case, namely, when the appointment to a temporary post is for a definite period. In such a case the servant so appointed acquires- a right to his tenure for that period which cannot be put an end to _unless there is a· special contra.ct entitling the employer to do so on giving the requisite notice or the person so appointed is, on enquiry held on due notice to the servant and after giving him a reasonable opportunity to defend himself, found guilty of misconduct, negligence, inefficiency or any other disqualification and is by way of punishment dismissed or removed from service or reduced in rank. The ·:substantive appointment to a temporary post, under the rules, used to give the servant so appointed S.C.R. SUPREME COURT REPORTS 843 certain benefits regarding pay and leave, but was 1957 otherwise on the same footing as appointment to a Parshotam Lai temporary post on probation or on an officiatirig basis, Dh~gra that is to say, terminable by notice except where under The Union of India the rules promulgated in 1949 to which reference will Das c. J. hereafter be made, his service had ripened into what is called a quasi-permanent service. The position may, therefor, be summarised as following : In the absence of any special contract the substantive appointme~t to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed nwnber of years' service or the post is abolished and his service cannot be terminated except - by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right . to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives)to the-servant so appointed no right to the post and his service may be terminated unless his ser~ice had ripened into what is, in the servic·e rules, called a quasi'."permanent service. The question for our consideration is whether the protections of Art. 311 are available to each of these several categories of Government servants. A number of decisions bearing on the question of construction of Arts. 310 and 311 have been cited before us which indicate that there is some difference of opinion between the Judges of the different High Courts and in some cases amongst the Judges of the same High Court. Thus it has been held in some cases that Arts. 310 and 311 do not make any distinction between Government servants who are employed in permanent posts and those who are employed in tern- 844 SUPREME COURT REPORTS [19581 1957 porary posts. See Jayanti Prasad v .. The State of Parshotam Lal Uttar Pradesh('), G. P. Oak v. The State of Dh~gra Bombay(2), Kishanlal Laxmilal v. The State of Th• Unionoflndia Marlhya Bharat('), Gopi Kishore Prasad v. The State of Bihar('), Punit Lal Saha.v. The State of Bihar(') Das C. J. and Yusuf Ali Khan v. Province of the Punjab("). · On the other hand it has been held in some cases that a Government servant cannot be deemed to be a member of a service unless he is permanently absorbed therein, nor can he be deemed to be a holder· of such post unless he holds it permanently and that such a Government servant is not entitled to claim the benefit of Art. 311. See Laxminarayan Chiranjilal Bhargava v. The Union of India(1), Engineer-inChief, Army Head Quarters v. C. A. Gupta Ram("), State of Punjab v. S. Sukhbans Singh(•) and Chironjilal v. Union of lndia('0 ). The cases cited before us also indicate that the preponderance of view is that only a dismissal or removal or reduction in rank by way of penalty attracts the operation of Art. 311 ( 2), but that a termination of service brought about otherwise than by way of punishment e.g., by the exercise of the right under the terms of employment or under the relevant rules regulating the conditions of service which form part of the terms of employment does not. See Jayanti Prasad v. The State of Uttar Pradesh (supra), Shrinivas Ganesh v. Union of India( 11 ), Jatindra Nath Biswas v. R. Gupta( 12), Rabindra Nath Das v. The General Manager, Eastern Railway("), Jatindra Nath Mukherjee v. The Government of the Union of India("), Ahmad Sheikh v. Gulam Hassan("), Ganesh Balkrishna Deshmukh v. The State of Madhya Bharat('•), D .. P. Bagunath v. The State of Coorg("), M. V. Vichoray v. The State of Madhya Pradesh ('"), Kamta Charan Srivastava v. Post Master General( 10 ) and Sebastian v. State('0 ). The however, do not lay down or clearly. (I) A.I.R. (1951) All. 793. (2) A.I.R. (1957) Bom. 175 (3) A.1.R. (1956) M.B. 100. (4) A.I.R. {1955) Pat. 372. (5) A.l.R. (1957) Pat. 357. (6) A.l.R. 1950) Lah. 59. (7) 1.L.R. (1955) Nag. 893; A.I.R. (1956) Nag. (8) A.I.R. 1957) Punj. 42. (9) A.I.R. (1957) Punj. 191. 113. (10) A.I.R. (f957) Rl\J. 81. (II) L.R. 58 Bom. 673; A.I.R. (1956) Bom. 455. (12) A.I.R. (1954) Cal.