Decided on August 14,1953



Subba Rao, J. - (1.) This is an application tinder Article 226 of the Constitution of India for issuing a Writ of Certiorari to quasnithe order of the Government removing the petitioner from the office of Sub-Magistrate. In or about the end of 1951 the Madras Public Service Commission invited applications from the Members of the Bar and others for six appointments of Sub-Magistrates In the Madras Supordinate Magisterial service. The petitioner along with others applied for the post. On 20-3-1952 the Madras Public Service Commission interviewed the candidates. On 29-3-1952 the petitioner received a communication from the Madras Public Service Commission informing him that subject to his being found to be physically fit he had been selected provisionally for appointment as a Subordinate Magistrate. He was also asked to send a medical certificate showing his physical fitness before 15-4-1952. In the list of the selected candidates he was placed first in rank. On 30-4-1952 the High Court issued an official memorandum to him informing him that he was selected for appointment as Sub-Magistrate. He was also directed to report himself to the Collector of Kistna peremptorily on 15-5-1952 to undergo the training prescribed in G. o. No. Ms. 2021, Public (Separation) Department, dated 28-41951, The petitioner received the communication on 8-5-1952 and he reported himself to the Collector of Kristna and commenced his training on 15-5-1952. On 39-5-1952 the High Court sent to him another communication whereby the petitioner undergoing training in Kistna was withdrawn from training and posted as Additional Sub-Magistrate, Nellore. He was directed to join forthwith. The petitioner immediately proceeded to Nellore and joined duty on 6-6-1952.
(2.) On 29-6-1952 he received from the High Court an order to the effect that his posting was cancelled. The applicant then addressed a petition to the High Court asking for elucidation of the previous order. On 20-8-1952 the High Court informed him that the Government in consultation with the Public Service Commission had ordered the removal of his name from the list of candidates selected for appointment as Sub-Magistrates, He then sent petitions dated 25-81952 to the High Court as well as to the Government to reconsider his petition. He received a communication dated 25-11-1952 from the Government informing him that the Government declined to reconsider the orders already passed. He filed the aforesaid writ for quashing the order of the Government. Learned-counsel for the petitioner raised before me two points: 1. The Government of Madras have no power to remove him as under the Rules the authority appointing him, namely, the High Court of Judicature at Madras, alone can remove him from service. 2. The Government of Madras have contravened the provisions of Article 311 of the Constitution of India in removing him from service. The learned Advocate General raised before me two preliminary points. He contended that under Article 310(1) of the Constitution of India, every person holding any civil post under a State holds office during the pleasure of the Governor and that when the Governor himself removes such a person from service the safeguards provided under Article 311 against arbitrary removal would not govern him. In any view he argued that the Court would not issue an order which in effect would be only declaratory in nature and which could not compel the Government to take back the petitioner into service. He would further state that the authority which removed the petitioner in this case is the High Court and therefore the High Court or a Judge representing the High Court cannot issue a writ against the High Court. It is not necessary or open to me to consider the first question as it is concluded by a decision of a Division Bench of this Court consisting of Rajamannar C. J. and Venkatarama Aiyar J. in -- 'Sambandam v. The General Manager, Section I. Rly.', (A), which is binding on me. Though in terms the contention now advanced before me by the Advocate General was not put before them, the learned Judges considered the scope of Arts, 310 and 311 of the Constitution of India. After considering the corresponding sections in the Government of India Act, and the law bearing on the subject, the learned Judges observed at page 58: "Thus the rule that civil posts under the Government are held at pleasure is part of the law of this country and it involves the consequence that there can be termination of service at will. Article 310 provides that this rule Is subject to the exceptions 'expressly provided by this Constitution.' Such exceptions are provided in Article 310(2) which provides for compensation being paid when a contract for a period Is terminated for no misconduct of the Civil servant; in Article 311(1) which enacts that a person cannot be dismissed by an authority subordinate to that by which he is appointed; and In Article 311(2) which prescribes that a particular procedure should be followed before a person is dismissed or removed from service. Subject to these statutory restrictions the general rule embodied In Article 310(1) that all offices under the Government are held at pleasure will govern the rights of the parties." It follows from the aforesaid observations that the legal position embodied in Article 310 of the Constitution of India, namely, that every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor, is subject to the provisions of Article 310(2) and Article 311. It cannot therefore be contended that the Governor can remove a civil servant without complying with the provisions of Article 311.
(3.) For can I accept the second preliminary objection taken by Advocate General. It is not really a preliminary objection. In effect he argued that this Court will not issue a writ of certlorari when in view of the previous decisions of the Judicial Committee the Government cannot be compelled to take back the dismissed servant. In this case if the contention of the petitioner is sound, the High Court would not be passing any infructuous order. It would be directing the Government to pass a legal order after complying with the provisions of the Constitution of India. To that extent it would be performing its duty to see that no authority in this State exercised its powers in derogation of the provisions of the Constitution.;

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