S.K.Verma, C.J. - (1.) This special appeal is directed against the judgment of a learned Single Judge of this Court, dated December 21, 1964, allowing Civil Miscellaneous Writ No. 2849 of 1962 and quashing the order of the General Manager, removing the respondent from service and the order of the Railway Board on appeal, confirming the order passed by the General Manager.
(2.) The respondent was appointed as a Signaller by the Traffic Manager of the B. N. W. Railway Company Limited in the year 1932. In due course he was promoted to the position of Station Master in that Company. On December 31, 1942, the Company-railway was taken over by the State. The respondent was removed from service and he was offered a fresh appointment in the O.T. Railway (now known as the North-Eastern Railway) under the Government with effect from January 1, 1943. The Agent and General Manager of the company-railway was authorised by the Government to make the offer. This offer is to be found in Annexure 'R' to the counter-affidavit. The offer was accepted by the respondent and he was appointed in the railway taken over by the government.
(3.) The argument advanced before the learned Single Judge was that the removal of the respondent from service was in violation of the provisions of Article 311 (1) of the Constitution of India as the respondent was removed from service by an authority subordinate in rank to that which appointed him. This argument appealed to the learned Single Judge who, relying on Mohammad Matteen Qidwai v. The Governor-General in Council, A.I.R. 1953 Allahabad 17 , came to the conclusion that as the person who appointed the respondent was the Agent and General Manager of the Company-railway under authorisation by the government, the appointing authority must be deemed to be the Railway Board to whom the General Manager was subordinate. With great respect, we are unable to agree with the learned Single Judge. It appears to us that the decision upon which the learned Single Judge has relied, is not in favour of the respondent. At page 20, we find the following in the judgment of Sapru, J : "The conclusion I have arrived at is that though initially the plaintiff was appointed as a Sub-permanent way inspector by the Chief Engineer of the Rohilkhand and Kumaun Railway, his appointment came to an end on 13-12-1942. Thereafter, he was appointed to the same post by the then General Manager of the two combined Railways, while that General Manager was still technically not a Crown Servant, under the authority and on behalf of Government of India Railway Board. He was thus, in my opinion, appointed by the General Manager under the authority of the Government of India and his services could not be terminated by an officer lower than the General Manager, though they could be terminated by one superior to the General Manager." The other learned Judge constituting the Bench, V. Bhargava, J. has said that he had heard the judgment delivered by his brother Sapru, J. and he entirely agreed with the conclusion arrived at by him. The conclusion, therefore which we have quoted above, is the conclusion of both the learned Judges. V Bhargava, J. has clarified it still further in his judgment saying that the appointment was made by the General Manager of the Company-railway as a special nominee of the government. It is, therefore, not possible to contend that the appointment of the respondent was made by the Railway Board.;