Under Article 311(1), removal is valid if the removing authority is not subordinate in rank to the appointing authority. A conditional call letter for training is not an appointment order; the operative appointment is the order issued upon successful completion of the prescribed training.

JUDGMENT :

VIPUL M. PANCHOLI, J.

1. Leave granted.

2. The present appeal assails the judgment and order dated 12.01.2023 passed by the High Court of Judicature at Allahabad in Second Appeal No. 676 of 1991, whereby the High Court dismissed the second appeal preferred by the present appellants and affirmed the judgment and order dated 07.12.1990 passed in Civil Appeal No. 30 of 1989 by the learned Additional Civil Judge, Gorakhpur (for brevity, “the First Appellate Court”). The High Court held that the respondent had been appointed as a ‘Rakshak’ in the Railway Protection Special Force (for brevity, “the RPSF”) by the Commandant/Chief Security Officer and therefore, his removal by the subordinate authority i.e. the Adjutant/Assistant Commandant, was in violation of Article 311(1) of the Constitution of India (for brevity, “the Constitution”).

2.1. The First Appellate Court allowed the appeal preferred by the present respondent and reversed the judgment and order dated 03.12.1988 passed in Case No. 2662 of 1986 by the learned Additional Munsif Magistrate, Gorakhpur (for brevity, “the Trial Court”). The First Appellate Court held that the respondent had been appointed by the Commandant/Chief Security Officer pursuant to the call letter dated 03.05.1979, whereas the order of removal dated 18.03.1983 was passed by the Adjutant, who was subordinate to the appointing authority. Therefore, it was held that the removal was contrary to Article 311(1) of the Constitution. It was further held that the ex-parte departmental enquiry had denied the respondent a reasonable opportunity of defending himself, particularly in view of his medical condition and accordingly, declared the order of removal dated 18.03.1983 and the departmental appellate order dated 07.11.1984 invalid.

2.2. The Trial Court, on the other hand, held that the present respondent (original plaintiff) was validly appointed as a Rakshak by the Assistant Commandant vide Battalion Order dated 04.12.1979, upon successful completion of his initial training. It further held that the Adjutant was competent to pass the order of removal in accordance with the applicable Railway Protection Force Rules, 1959 (for brevity, “the Rules”) and that the order of removal had been validly passed.

3. As per the pleadings of the parties, the material facts giving rise to the present appeal are set out hereinbelow:

3.1. The respondent was enlisted as a Recruit (under training) for the post of Rakshak in the RPSF and was called upon to report for training at the Battalion headquarters of 2Bn RPSF, Gorakhpur, vide call letter dated 03.05.1979 issued by the Commandant. The said call letter, inter alia, provided that the appointment was subject to successful completion of the prescribed initial training and provided for a period of probation.

3.2. Upon successful completion of the initial training, B.O. No. 2BN/9/4/9/409 dated 04.12.1979 was issued by the Assistant Commandant from Headquarters, 2nd Battalion, RPSF, Gorakhpur, recording that the concerned recruits had been appointed as Rakshaks with effect from 04.12.1979 and posted to their respective battalions. The respondent, at Serial No. 47, was allotted personal number 2612 and posted to the 7th Battalion.

3.3. Thereafter, Battalion Order No. 461/1979 dated 29.12.1979 was issued by the Adjutant for Commandant. The said Order was subsequently superseded by Battalion Order No. 58/1980 dated 25.02.1980 issued by the Adjutant for Commandant, which recorded that the concerned Rakshaks had already been issued appointment orders with effect from 04.12.1979 by the Assistant Commandant of the 2nd Battalion and were accordingly to be treated as regular Rakshaks with effect from that date.

3.4. While in service, the respondent was granted 15 days of Casual Leave along with Permission Leave from 09.05.1982 to 26.05.1982 however he failed to resume duty on 27.05.1982 and remained absent until 06.08.1982, for a period of 72 days, without any intimation to the compete