KRISHNA KUMARversusDIVISIONAL ASSISTANT ELECTRICAL ENGINEER CENTRAL RAILWAY AND ORS.

    so
                                KRISHNA KUMAR
                                            v.
            DIVISIONAL ASSISTANT ELECTRICAL ENGINEER
                    CENTRAL RAILWAY AND ORS.
                                    July 17, 1979
B
               [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
c    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
D   Nagpur by his order August 31, 1976. Tue Writ Petition filed by the appel-
    lant 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]
E
       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]

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

       4. Delegation of the power to make a particular appointment does not
G
    enhance or improve the hierarchical status of the delegate. An officer subor-
    dinate 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
H   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.)               5I

     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 ap-
                                                                                  c
     pointed on May 30, 1966 as an Apprentice Mechanic (Electrical)
     after selection by the Railway Service Commission and on the com-
     pletion of his training period, he was appointed as a Train Examiner
     (Electrical). On July 11, 1974 he was appointed as a Train Light-
     ing 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.
         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       G
     the Officer who made the order of appointment and (ii) who remov-
     ed the petitioner from service, with special reference to the designa-
     tion 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.
     52                   SUPREME COURT REPORTS              [1980] 1 s.c.R.

A        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
B    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
c   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
D   is not higher in rank than the latter is self-evident. In the circnms-
    tances, 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
E    respondents relies on paragraph 2 of respondent 1's affidavit, dated
     January 7, 1978, wherein he has stated that the power to make appoint-
     ments 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 appoint-
    ment. It is at that point of time that the constitutional gnarantee
G   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
H   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.
    KRISHNA KUMAR v. ELECTRICAL ENGINEER ( Chandrachud, C.J.)            53


        Besides, delegation of the power to make a particnlar appoint-         A
    ment does not enhance or improve the hierarchical stat•os of the dele-
    gate. 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
l   to be subordinate in rank to the Chief Electrical Engineer merely be-
    cause the latter's power to make appointments to certain posts has         B
    been delegated to him.
        Since the appellant was appointed by the Chief Electrical Engi-
    neer 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     c
    held the respondent 1 had no power to remove the appellant from
    service. The order of removal is in patent violation of the provi-
    sions 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            D
    passed by respondent 1 removing the appellant from service is uncons-
    titutional 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.
                                                                               E

     V.D.K.                                                 Appeal allowed.