A Government servant holding a post in an officiating capacity is not protected by Article 311 of the Constitution or Rule 15 of the Fundamental Rules against reduction in rank.

Bhandari, J.

1. By this appeal under Clause 10 of the Letters Patent we are invited to pronounce upon a question which has arisen before us on a number of occasions but to which no satisfactory answers appears to have been returned by our Courts. The question is whether a Government servant who is holding a post in an officiating capacity is within the protec- tion of the law which declares that no person shall be reduced in rank unless he has been afforded a reasonable opportunity of being heard.

2. One Fershotam Lal Dhingra entered Railway sendee in or about the year 1924, was appointed Deputy Chief Controller in a substantive capacity in the year 1947, Chief, Controller in an offi- ciating capacity in the year 1950 and Assistant, Superintendent Railway Telegraphs In a similar capacity In the year 1951. He was found to be negligent and incompetent in the discharge of his duties and was transferred to the post of Deputy Chief Controller on 19-8-1953 without charges or hearing. He applied for a mandamus for restoration to the former post on the ground that his degradation was an arbitrary and summary act and that he had been removed from his post upon charges which he had ho opportunity to hear or defend. The plea that the provisions ot Article 311 had. been violated found favour with the learned Single Judge before whom the case came up for consideration and the learned Single Judge accordingly issued a mandamus directing the appropriate authority to restore him to his former position. The Rail- way Administration has come to this Court in appeal and the question for this Court is whether the-learned Single Judge has come to a correct determination in point of law.

3. Rule 55, Civil Services (Classification, Control and Appeal) Rules declares that no order of dismissal, removal or reduction in rank shall be passed on a Government servant unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The rights guaranteed by this rule were fully safeguarded and preserved by the enactment of Section 240, Government of India Act, 1935, and later by the enactment of Article 311, Constitution of India. It may perhaps be assumed that the framers of the Constitution were anxious to secure that a Government servants rights in regard to disciplinary matters such as removal, dismissal and reduction. in rank should not be less favourable than the rights which were enjoyed by him to the year 1935.

4. The expression reduction in rank has not been defined in the Constitution or in the statutory rules, but there can be little doubt that it means. a transfer, without the consent of the incumbent, from a higher position to a lower position at a lower rate of salary. An order of reduction is in substance and effect a consolidated order consisting of two parts -- an order removing the incumbent from the position formerly held by him and an order appointing him to a position of less dignity in the same service.

5. Countless cases, some of which go back to early times, have established the principle that remedy by way of mandamus is not available to a person unless he has a clear legal right to the performance of the particular act the performance of which is sought to be compelled that is a right clearly founded in or granted, by law, State ex. reL Todd V/s. Yelle, 110 P 2nd 162 : 7 Wash 2nd 443 (A). It follows as a consequence that a person who applies for a writ of mandamus to compel his resto- ration to the position from which he has been wrongfully removed must satisfy the Court.

1.That prior to his removal from the post occupied by him he had a clear legal right to occupy the said post Stott V/s. Chicago, 205 Illinois 281 : 68 N. E. 736 CB);

2.that he was removed from the said post without charges or hearing; and

3.that he has an indisputable right to reoccupy the said post Kimball V/s. Olmsted, 20 Washington 629 : 56 Pacific 377 (C).

A