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IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)
K.L. Shrivastava, J.
Sardar Badeosingh Nageenasingh
Vs.
State of Madhya Pradesh and others
Second Appeal No. 402 of 1985
Decided On: 29.03.1989
CONSTITUTIONAL LAW - ARTICLE 311 - M.P. CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1966 - RULE 18(1) - COMPULSORY RETIREMENT - VALIDITY - ORDER PASSED BY AUTHORITY SUBORDINATE TO APPOINTING AUTHORITY - VIOLATION OF ARTICLE 311(1) - NULL AND VOID - BACK WAGES - ENTITLEMENT.
Fact of the Case:
The appellant, a constable, was subjected to a departmental enquiry along with two other constables on the charge of being responsible for the escape of two prisoners from custody. The Superintendent of Police (S.P.) imposed the penalty of compulsory retirement on the appellant. The appellant filed a civil suit for a declaration that he continues to be in service. The trial court dismissed the suit, and the appellate court affirmed the dismissal.
Finding of the Court:
The court held that the order of compulsory retirement passed by the S.P. was violative of the constitutional guarantee under Article 311(1) of the Constitution and was, therefore, null and void. The court also held that the appellant was entitled to back wages.
Issues: 1. Whether the Superintendent of Police was competent to pass an order of compulsory retirement against the appellant? 2. Whether Rule 18 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 has been violated and if so, what would be the effect?
Ratio Decidendi: 1. The court held that the order of compulsory retirement passed by the S.P. was violative of the constitutional guarantee under Article 311(1) of the Constitution because it was passed by an authority subordinate to that by which the appellant was appointed. 2. The court held that Rule 18(1) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, which requires an order by the Governor or any other authority competent to impose the penalty of dismissal from service on all government servants before any proceeding against more than one government servant can be commenced, was violated. The court held that the absence of such an order rendered the inquiry vitiated and the impugned order null and void.
Final Decision: The appeal was allowed, and the judgments and decrees passed by the courts below were set aside. The suit for declaration was decreed, and it was declared that the order of compulsory retirement passed by the Superintendent of Police was null and void. The appellant was deemed to continue in service and was entitled to the consequential benefits under the law.
K.L. Shrivastava, J.
1. This appeal is directed against the judgment and decree dated 2-12-1985 passed by the VIIIth Additional Judge to the District Judge, Indore in Civil Appeal No. 53-A of 1985 whereby the judgment and decree passed by the VIIth Civil Judge, Class II, Indore dismissing the appellant's suit (C.S. No. 38-A/84) For declaration that the order of his compulsory retirement passed by the superintendent of Police, Indore is void and is of no legal consequence, stand affirmed.
2. It is not in dispute that on 17-10-1950 the appellant was appointed by the I. G. Police of the erstwhile State of M.P. as Constable. In due course, by the order dated 29-6-1953 he was promoted as Head Constable.
3. On the charge that they were responsible fur two prisoners having escaped on 26-2-1981 from custody, the appellant along with two constables was subjected by the S. P. to a Departmental Enquiry in a common proceeding.
4. The charge was held proved by the Inquiring Officer and ultimately by the order dated 26-9-1981 the S. P., Indore imposed on the appellant the penalty of compulsory retirement.
5. The appellant preferred departmental appeal before the DIG. but was unsuccessful. He then filed the aforesaid civil suit for declaration that he continues to be in service, with the result already staled.
6. This appeal has been admitted on the following substantial questions of law:
(1) Whether the Superintendent of Police was in the circumstances, competent to pass an order of compulsory retirement against the appellant? and
(2) Whether Rule 18 of the M. P. Civil Services (Classification. Control and Appeal) Rules, 1966 has been violated and if so, what would be the effect?
7. The contention of the appellant's learned counsel is that the order of compulsory retirement passed by the S.P. amounts to punishment of 'removal' within the meaning of Article 311 of the Constitution and being in infraction of the constitutional guarantee thereunder is vitiated.
8. The relevant portion of Article 311 may usefully be reproduced. It runs thus:
311(1) No person is member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall he dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charge against him and given a reasonable opportunity of being heard in respect of those charges.
As to the connotation of the term 'appointing authority'.
9.As to the connotation of the expression 'Appointing Authority' in the decision in Bhagwandas vs. State of M.P. 1985 MPLJ 356 : 1985 JLJ 599 with reference to two Supreme Court decisions in Krishna Kumar's case AIR 1979 SC 1112 and Mysore S.R.T. Corporation's case AIR 1977 SC 749 it has been held that the status of appointing authority has to be determined with reference to the date of appointment and dismissal of a Government servant by an authority, who on the date of appointment was subordinate to the one appointing him, is illegal. As to the law as laid down on the subject by the Supreme Court an excerpt from paragraph 5 of the decision in Krishna Kumar's case (supra) and the following two paragraphs may usefully be reproduced. They run thus:
Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Article 311(1) becomes available to the person holding for example, a civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to that which appointed him.
6. Besides, delegation of power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An Officer subordinate to another will not become his equal in rank,
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