- (1.) THE petitioner wants that the order passed by the President of India on 5 November 1966 removing the petitioner from service be quashed.
(2.) THE petitioner was confirmed In the post of clerk, grade II, in the Accounts Department of the Northeastern Railway, Gorakhpur, in 1957. He was posted in the office of the Financial Adviser and Chief Accounts Officer, Gorakhpur, when he was served with the impugned order stating that he is being removed from service with effect from 22 November 1966. The impugned order reads as follows: 1. The President is satisfied that the retention of Muhammad Akhtar, clerk, grade II, Traffic Accounts Branch, Financial Adviser and Chief Accounts Officer's office, Northeastern Hallway, Gorakhpur, in service is prejudicial to national security and that the said Muhammad Akhtar ought to be removed from service. 2. The President is further satisfied under Sub-clause (c) of the proviso to Clause (2) of Article 311 of the Constitution that in the Interest of the security of the State, It is not expedient to bold an enquiry in the case of the said Muhammad Akhtar.
(3.) ACCORDINGLY, the President hereby removes the and Muhammad Akhtar from service with effect from 22 November 1966. This order has been challenged on the ground that it levels a charge against the petitioner, namely, that the retention of his service is prejudicial to national security. The Railway Services (Safeguarding of National Security) Rules, 1954, framed under Article 309 of the Constitution provide that on such a charge an opportunity of explanation shall be given. The petitioner has not been given any such opportunity. The order hence is on that account Illegal. Learned Counsel has urged that the rules framed under Article 309 of the Constitution control the pleasure conferred on the President by Article 310. The pleasure can be exercised only in accordance with the rules framed under Article 309. He has placed reliance upon a Full Bench decision of Jammu and Kashmir High Court in D. N. Dhar v. State of Jammu and Kashmir A. I. R. 1964 J. and K. 92, This decision does lend support to the submission of learned Counsel. But with respect it does not seem to lay down the correct law. In State of Uttar Pradesh v. Babu Ram Upadhya A. I. R. 1961 B. C. 751, the Supreme Court laid down the following propositions (vide Para. 22): The discussion yields the following results: (1) In India every person who is a member of a public service described in Article 310 of the Constitution holds office daring the pleasure of the President or the Governor, as the case may be, subject to the express provisions therein. (2) The power to dismiss a public servant at pleasure is outside the scope of Article 154 and, therefore, cannot be delegated by the Governor to a subordinate officer, and can be exercised by him, only in the manner prescribed by the Constitution, (3) This tenure is subject to the limitations or qualifications mentioned In Article 311 of the Constitution. (4) The Parliament or tie Legislatures of States cannot make a law abrogating or modifying this tenure BO as to Impinge upon the overriding power conferred upon the President or the Governor under Article 310 as qualified by Article 311. (5) The Parliament or the Legislatures of States can make a law regulating the conditions of service of such a member which includes proceedings by way of disciplinary action, without affecting the powers of the President or the Governor under Article 310 of the Constitution read with Article 311 thereof. (6) The Parliament and the Legislatures also can make a law laying down and regulating the scope and content of the doctrine of 'reasonable opportunity' embodied in Article 311 of the Constitution but the said law would be subject to Judicial review. The pleasure conferred on the President by Article 310 is subject to only Article 311, It cannot be abrogated or modified by law made by the Parliament. The law made by Parliament cannot affect the pleasure of the President under Article 310. The rules framed under Article 309 also cannot impinge upon the overriding power conferred upon the President by Article 310. In Para. 20 the Supreme Court specifically dealt with rules framed under Article 309 and held that a law made by the appropriate legislature or the rules made by the President or the Governor, as the case may be, under the said article may confer a power upon a particular authority to remove a public servant from service but the conferment of such a power does not amount to a delegation of the Governor's pleasure. There cannot be conflict between tee exercise of the Governor's pleasure under Article 310 and that of an authority under the statute, for the statutory power would be always subject to the overriding pleasure of the Governor. The rules under Article 309, therefore, cannot touch or affect the President's pleasure under Article 310. In this context the Supreme Court said that the pleasure of the President under Article 310 can be, exercised by him personally and that it cannot be delegated. 3. In Moil Ram Deka and Ors. v. Northeast Frontier Railway and Ors. 1964?ii L. L. J. 467, the Supreme Court held at p. 475 that: These rules, and indeed, the exercise of the powers conferred on the delegate must be subject to Article 310, and so, Article 309 cannot Impair or affect the pleasure of the President or the Governor therein specified. There is thus no doubt that Article 309 has to be read subject to Articles 310 and 311, and Article 310 has to be read subject to Article 311. It is significant that the provisions contained in Article 311 are not subject to any other provision of the Constitution. Within the field covered by them, they are absolute and paramount. This decision of the Supreme Court was followed in this Court in Kedar Nath Pandey v. State of Uttar Pradesh. ;