The power under Article 309 to frame rules cannot be exercised so as to contravene Article 311(1) of the Constitution.

( 1 ) THIS order shall also dispose of the connected Letters Patent Appeals Nos. 31, 34 and 39, all of 1957. All these appeals are directed against the order of Choudhuri J. refusing to interfere with the removal of the petitioners from service.

( 2 ) IT is not in dispute that all the petitioners are Class IV employees of the railway administration and were appointed by the Superintendent, Watch and Ward Department, Chakradharpur. In the year 1955, this department was given the name of Security Force, and the Chief Security Officer was declared its head. Rules governing the conditions of service of the Security Force were made by the President purporting to act under Article 309 of the Constitution of India. Under these rules, the Assistant Security Officer was designated as the appointing and dismissing authority of Class IV servants in the Security Force. All the petitioners were removed from service by the Assistant Security Officer acting under the powers conferred by these rules.

( 3 ) THE only point that has been urged before us against the orders of the learned Single Judge is that since the Assistant Security Officer is an authority below the rank of the Superintendent, Watch and Ward, his orders contravene Clause (1) of Article 311 of the Constitution.

( 4 ) THIS is a case in which only the name of the department was changed, as was admitted in the return in paragraph 1. It was also admitted that the Superintendent, Watch and Ward, was the head of the department at that time, and now the Chief Security Officer is the head of the same department under the new name. Accordingly, it is only the Chief Security Officer who is equal in rank to the Superintendent, Watch and Ward.

( 5 ) THE learned Single Judge supported the orders that are impugned on the ground that the authority under the new rules to remove the petitioners being the Assistant Security Officer he had the power to remove them from service. The rules are certainly valid, and in some cases they are binding on employees who entered service before the rules were framed. However, the power under Article 309 to frame rules cannot be exercised so as to contravene Article 311 (1) of the Constitution. The power of the Assistant Security Officer cannot, therefore, extend to dismiss employees who were appointed actually by a higher authority.

( 6 ) THE test whether Article 311 (1) is contravened is not that the authority should be performing the same functions but that it should not be lower in rank than the authority that appointed a civil servant; Somasundaram v. State of Madras, (S) AIR 1956 Mad 419. Here the Assistant Security Officer not being the head of the department cannot be deemed to be of a rank equal to that of the Superintendent, Watch and Ward. Accordingly, the orders impugned cannot be maintained.

( 7 ) THE result is that all the appeals are allowed, and the orders removing the petitioners from service are set aside. In the circumstances of the case, however, parties shall bear their own costs throughout. The outstanding amounts of security shall be refunded to the appellants.

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