JUDGMENT

K. JAGANNATHA SHETTY, J. :— This appeal by special leave is against a judgment and decree of a Division Bench of the High Court of Kerala.

2. Short factual background is this :

The respondent was appointed on October 15, 1951 as an ordinary industrial labourer at Naval Base, Cochin. He was promoted as a welder Gr. 11 on September 18, 1956. He was confirmed in that post. He was thus a permanent civilian industrial employee. On October 25, 1968, his services, however, were terminated under Art. 310 of the Constitution. No reason was assigned. He instituted a suit in forma pauperis for declaration that the termination of his service was illegal and void ab initio. On the alternative, he claimed damages or compensation of Rs. 75,000/- for illegal termination. The trial Court awarded him Rs. 25,000/- as damages together with interest at 6 per cent per annum for the illegal termination of his services. That decree was confirmed by the High Court of Kerala. This appeal is directed against that judgment of the High Court. On July A), 1976, a Bench of this Court dismissed the appeal on merits. But upon review, that judgment was set aside and the appeal was ordered to be listed for fresh disposal. So the matter has come up before us.

3. There is no dispute on the material facts. There is no challenge that the respondent was a permanent and confirmed civilian worker in the Defence Department. In fact, it is an admitted position between the parties. He had a right to continue till he attained the age of 60 years. Article 459(b) of the Civil Service Regulations provides for that. It reads :

"(b) A workman who is governed by these Regulations shall be retained in service till the day he attains the age of sixty years.

Note. In this clause, "a workman" means a highly skilled, skilled, Semi-skilled or unskilled artisan employed on a monthly rate of pay in an industrial or a work charged establishment."

4. The Courts below have proceeded on the basis that Art. 311(2) of the Constitution was not applicable to the respondent, but the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short "1965 Rules") were, however, applicable.

5. Mr. Mahajan for the appellants contends that the reasoning of the Courts below is untenable and uncalled for. We think that the counsel is on terra firma. There cannot be any dispute as to the non applicability of Art. 311(2) to the case of respondent. A civilian employee in Defence Service who is paid salary out of the estimates of the Ministry of Defence does not enjoy the protection of Art. 311(2). In L. R. Khurana v. Union of India, (1971) 3 SCR 908 at p. 911 this Court observed:

"The question whether the case of the appellant was governed by Art. 311 of the Constitution stands concluded by two decisions, of this Court. In Jagatrai Mahinchand Ajwani v. Union of India, (C.A. 1185 of 1965 dated 6-2-1967)* it was held that an Engineer in the Military Service who was drawing his salary from the Defence Estimates could not claim the protection of Art. 311(2) of the Constitution. In that case also the appellant was found to have held a post connected with Defence as in the present case. This decision was followed in S. P. Behl v. Union of India, (C. A. 1918 of 1966 dated 83-1968).** Both these decisions fully cover the case of the appellant so far as the applicability of Art. 311 is concerned."

* Reporter in 1967 Serv LR 471 (SC).

** Reporter in 1968 SC (Notes) 150.

6. Now the only question is whether the 1965 Rules framed under the proviso to Art. 309 of the Constitution proprio vigore apply to the respondent or become inoperative in view of Art. 310, of the Constitution? Article 310(l) deals with the -tenure of officer of persons serving the Union or the State. It provides :

"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