Judgment

S. K. DAS, J. : This is an appeal by special leave and the only question for decision is if the order of the President dated October 1, 1954 removing the appellant from service with effect from that date is invalid, as claimed by the appellant, by reason of a contravention of the provisions of Art. 311 (2) of the Constitution.

2. The short facts are these. The appellant stated that he joined permanent Government service, on April 4, 1924. In 1947, before partition, he was employed as Assistant Secretary, Frontier Corps of Militia and Scouts in the then North -Western Frontier Province, under the administrative control of the External Affairs Department of the Government of India. The appellant stated that the post which he held then was a post in the Central Service, Class II. After partition, the appellant opted for service in India and was posted to an office under the Ministry of Commerce in the Government of India in October, 1947. In December, 1949 he was transferred to the office of the Chief Controller of Imports, New Delhi, to clear off certain arrears of work. In August 1951 he was posted as Deputy Chief Controller of Imports, Calcutta, and continued to work in that post till September, 1952. He then took four months leave on average pay and on the expiry of his leave on January 24, 1953, he was transferred as Section Officer in the Development Wing of the Ministry of Commerce. The appellant thought that the order amounted to a reduction of his rank and he made certain representations. As these representations bore no fruit, he applied for leave preparatory to retirement on February 6, 1953. In that application the appellant stated:

"Normally I am due to retire in April 1956 but I find it difficult to reconcile myself to the new conditions of service under which I am now placed to work. I find that I would not be wasting only myself but I would also not be doing full justice to the interest of my Government and country in my present environment. Under the circumstances, I pray that I may be permitted to retire from the 1st May 1953."

On February 14, 1953, the appellant amended his leave application and said that he had been informed by the Administrative Branch of the Development Wing that the question of permission to retire was under consideration, because of some difficulty with regard to the inclusion in the service of the appellant the period during which he held the post of Assistant Secretary, Frontier Corps; therefore he said that he might be granted leave on full average pay for four months with effect from February 15, 1953, if the decision to give him permission to retire was likely to be postponed beyond May 1, 1953. He amended his leave application by making the following prayer:

"Leave may be sanctioned for four months from the 15th February, 1953 or up to the date from which I am permitted to retire whichever may be earlier."

On March 10, 1953, the appellant was informed that he could not be allowed to retire at that stage, but the Ministry had agreed to grant him leave from February 16, 1953 to April 30, 1953. The appellant then went on leave and on February 1953, he wrote to Government to say that he was contemplating to join the service of Messrs. Albert David & Co. Ltd., Calcutta, and for that purpose he was accepting a course of training in that Company for two months. In April, 1958, the appellant accepted service under Messrs. Albert David & Co. Ltd., and he wrote to Government to that effect on April 6, 1953. On June 16, 1958, the appellant was charged with having violated R. 15 of the Government Servants Conduct Rules and Fundamental Rule 11. Rule 15 of the Government Servants Conduct Rules states, inter alia, that a Government servant may not without the previous sanction of Government engage in any trade or undertake any employment other than his public duties. Fundamental Rule 11 says in effect that unless in any case it be otherwise distinctly provided, the whole time of a Government