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KRISHNA KUMAR
_v._
DIVISIONAL ASSISTANT ELECTRICAL ENGINEER
CENTRAL RAILWAY AND ORS.
_July_ 17, 1979
[Y. V. CHANDRACHUD, C.J., S. MURTAZA FAZAL Au
AND E. S. VENKATARAMIAH, JJ.]
_Constitution_ _of_ _India,_ _1950,_ _Article_ 311(1)-Power _to renzove_ _an_ _em-_
_plo:ree_ _rests only witli thl' person who appointed_ _hini-A_ _delegate's_ _<;fatus_ _is_
_not enhanced to that_ _of_ _the delegator_ _by_ _virtue_ _of_ _delegation_ _of_ _power_ _of_
_appoint111ent-Date_ _of_ _appoi11tn1ent is the starting point when the ccnstitu-_
_tional guarantee under Art._ 311 (I) _be conies_ _available to the person hofding_
_a civil_ _post._
The appellrult who was appointed as a Train Lighting Inspector, Nagpur
on July 11, 1974 by the Chief El'ectrical Engineer \\'as removed from service
by respondent No. 1; the Divisional Assistant Engineer, Central Railway
Nagpur by his order August 31, 1976. Tue Writ Petition filed by the appellant in the Bombay High Court challenging the order of removal \Vas dis~
miss'ed summarily by a Division Bench of th~ Court.
Allowing the appeal by special leave, the Court
HELD : 1. The order of removal is- in patent violation of the provisions
of Article 311(1) of the Constitution. [53C]
2. Art. 311(1) of the Constitution provides that no person who is a
member of a civil service of the Union or an all India service or a civil
service of a St&te or holds a civil post under the Union or a State shall be
dismissed or removed by an authority subordinate to that by which he was
appointed. [52A]
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F 3. Whether or not an authority is subordinate in rank to another has to be
determined with referen~e to the state of affairs existing on the date of appoint ..
ment. It is at that point of time that the cons.titutional guarante'e under Art.
311(1) becomes available to the person holding, for example. a civil post
under the Un'ion Government that he shall not be removed or dismis~d by
an authority subordinate to that which appointed him. [52 F-GJ
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4. Delegation of the 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 by reason of his coming
to po~sess son1e of the pO\vers of that another. [53 A-Bl
The l)ivision<A Assistant Electrical Engineer in the instant case. does not
cease to be subordinate in rank to the Chief Electrical Engineer merely
because the latter's power to make appointments to certain posts has been
delegated to him the subsequent authorisation made in fa.vour of respondoo.t,
in regard to making appointments to the post held by the appellant cannot
confer upon respondent 1 the power to remove him. On the date of the
KRISHNA KUMAR _v._ ELECTRICAL ENGINEER _(Chandrachud,_ C.J.) 5 I
**appellant's** **appointment** **as** **a** **Train** **Lighting** **Inspector,** **respondent** **1** **had** **no** **A**
**power** **to** **make** **that** **appointment.** **He** **cannot** **have,** **therefore,** **the** **power to**
remove him. [52H, _53_ A-BJ
Clv!L APPELLATE JURISDICTION: Civil Appeal No. 755 of 1978.
'&
Appeal by Special Leave from the Order dated 21-10-1976 of the
Bombay High Court (Nagpur Bench) in S.C.A. No. 4260/76. **B**
_, _R._ _K. Garg, Edward Faleire, V._ J. _Francis_ and _D. K. Garg_ for the
Appellant.
_R._ _P._ _Bhat_ and _Girish Chandra_ for the Respondents.
The Jndgment of the Court was delivered by
CHANDRACHUD, C.J. The appellant, Krishna Kumar, was appointed on May 30, 1966 as an Apprentice Mechanic (Electrical)
after selection by the Railway Service Commission and on the completion of his training period, he was appointed as a Train Examiner
(Electrical). On July 11, 1974 he was appointed as a Train Lighting Inspector, Nagpur under an order passed by the Chief Electrical
Engineer. That the order of appointment was made by the C.E.E.
is undisputed and indeed there can be no controversy over it. The
list of officer declared to be heads of departments shows that Chief
Electrica.l Engineers are heads of their departments. By an order
dated August 31, 1976, the appellant was removed from service by
respondent 1, the Divisional Assistant Engineer, · Central Railway,
Nagpur.
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The appellant thereupon filed a Writ Petition (No. 4260 of 1976)
in the Bombay High Court to challenge the order of removal. A
Division Bench of the Nagpur Bench of the High Court dismissed the
Writ Petition summarily on October 21, 1976. Being aggrieved by that
order the appellant has filed this appeal by special leave.
The Special Leave Petition came up before this Court on February
22, 1978 when a Bench consisting of Justice V. R. Krishna Iyer and
Justice faswant Singh adjourned the petition for four weeks in order
to enable the respondents to file an affidavit stating as lo (i) who
appointed the petitioner, with special reference to the designation of
the Officer who made the order of appointment and (ii) who removed the petitioner from service, with special reference to the designation of that Officer. Pursuant to that direction, two affidavits were
filed by Shri S. P. Sarathy, Divisional Assistant Electrical Engineer,
Central Railway, Nagpur. The petitioner filed his rejoinder affidavit
on February 20, 1978. On a consideration of these affidavits the
Court on April 3, 1978 granted special leave to the appellant to file
this appeal.
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52 SUPREME COURT REPORTS [1980] 1 s.c.R.
Article 311 ( 1) of the Constitution provides that no person who
is a 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 be dismissed or removed by an authority subordinate to that
by which he was appointed. The simpl-' question for determination is
whether, as alleged by the appellant, he was removed from service
by an authority subordinate to that which had appointed him. The
relevent facts are but these and these only : The appellant was
appointed as a Train Lighting Inspector under an order issued by the
Chief Electrical Engineer and was removed from service under an
order passed by the Divisional Assistant Electrical Engineer, Central
Railway, Nagpur. The narrow question, therefore, for consideration
is whether the Divisional Assistant Electrical Engineer is subordinate
in rank to the Chief Electrical Engineer. None of the affidavits filed
by Shri Sarathy, who passed the order of removal says that the post
of Divisional Assistant Electrical Engineer is equivalent to that of the
Chief Electrical Engineer in the official hierarchy. That the former
is not higher in rank than the latter is self-evident. In the circnmstances, it seems clear that the appellant was removed from service
by an authority which is subordinate in rank to that by which he was
appointed.
In defence of the legality of the order of removal, counsel for the
respondents relies on paragraph 2 of respondent 1 's affidavit, dated
January 7, 1978, wherein he has stated that the power to make appointments to the post of the Train Lighting Inspector was delegated to
certain other officers including the Divisional Assistant Electrical
Engineer. It is urged that since the Div. Asstt. Elect. Engineer ha8
been given the power to make appointments to the post of the Train
Lighting Inspector, he would have the power to remove _any_ person
from that post. We cannot accept this contention. Whether or not
an auhority 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 gnarantee
under Art. 311 ( 1) becomes available to the per8on holding, for
example, a chil post nnder the Umon Government that he shall not
be removed or dismissed by an authority subordinate to that which
appointed him. The subsequent authorization made in favour of
respondent 1 in regard to making appointments to the post held by
the appellant cannot confer upon respondent 1 the power to remove
him. On the date of the appellant's appointment as a Train Lighting
Inspector, respondent 1 had no power to make that appointment. He
cannot have, therefore, the power to remove him.
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KRISHNA KUMAR _v._ ELECTRICAL ENGINEER ( _Chandrachud, C.J.)_ 5 3
Besides, delegation of the power to make a particnlar appointment does not enhance or improve the hierarchical stat•os of the delegate. An Officer subordinate to another will not become his equal
in rank by reason of his coming to possess some of the powers of
that another. The Divisional Engineer, in other words, does not cease
to be subordinate in rank to the Chief Electrical Engineer merely because the latter's power to make appointments to certain posts has
been delegated to him.
Since the appellant was appointed by the Chief Electrical Engineer and has been removed from service by an order passed by res•
pondent 1, who, at any rate, was subordinate in rank to the Chief
Electrical Engineer on the date of appellant's appointment, it must be
held the respondent 1 had no power to remove the appellant from
service. The order of removal is in patent violation of the provisions of Article 311 (1) of the Constitution.
For these reasons we allow the appeal, set aside the order passed
by the High Conrt and hold that the order dated Augnst 31, 1976
passed by respondent 1 removing the appellant from service is unconstitutional and, therefore, of no effect. The appellant inust accordingly
be deemed to continue in service until, if so advised, the government
takes' appropriate steps to bring his service to an end.
Respondents wiI! pay the costs of the appeal to the appellant.
V.D.K. _Appeal allowed._
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