STATE OF U. P. AND ANOTHER Vs. DR. PREM BEHARI LAL SAXENA

JUDGEMENT

(1.) JUDGEMENT These two appeals raise a common question whether Article 311(2) of the Constitution of India is applicable where services of a permanent Government servant are dispensed with on the abolition of the permanent post held by him.

(2.) IN Special Appeal No. 809 of 1964 the facts are these. Dr. Prem Behari Lal Saxena was appointed Anaesthetist in a Government hospital at Kanpur. He was appointed to this post by the State Government by its order dated 31-3-1951. He was confirmed in this post with effect from 10-9-1955. On 3-11-1961 the State Government passed an order that, as the Governor has been pleased to order the abolition of the permanent ex-cadre post of the Anaesthetist at the Government hospital at Kanpur, services of Dr. P. B. L. Saxena, the incumbent of the post, were being dispensed with. Dr. Prem Behari Lal filed in this Court a writ petition challenging the order of discharge dated 3-11-1961 on various grounds. One of the grounds was that he was removed from service without giving him a show cause notice as required by Article 311(2) of the Constitution. The reply of the opposite parties was that Article 311(2) of the Constitution is not applicable where services of a permanent Government servant are dispensed with on the abolition of the permanent post held by him. On this point, a learned Single Judge of this Court found in favour of the petitioner. He held that termination of services of the petitioner amounted, to removal, that Article 311 (2) was attracted, and the petitioners discharge from service was unconstitutional. On 2-9-1964 the petition was allowed, and the order of the State Government dated 3-11-1961 was quashed.

(3.) SECOND Appeal No. 912 of 1962 arises out of a suit for declaration and recovery of arrears of salary. Bhagirath Mal plaintiff brought the suit against the Union of India on these allegations. The plaintiff held a permanent civil post of clerk cashier in the Central Remount Depot. On 10-6-1959 he was served with a notice of discharge. He was discharged from service without serving upon him a show cause notice as required by Article 311(2) of the Constitution of India. The plaintiff therefore prayed for a declaration that the order of discharge dated 10-6-1959 was illegal and inoperative, and that the plaintiff was still holding the post of clerk-cashier. The plaintiff also claimed a sum of Rs. 78 on account of arrears of salary from 10-9-1959 to 27-9-1959. The defendant admitted that the plaintiff was holding the post of clerk cashier. The defence was that the post of clerk-cashier was abolished with effect from 15-10-1958. The plaintiff was served with three months notice under Article 426 of Civil Service Regulations. He was given an option either to accept another post or to retire on compassionate pension. The plaintiff was not entitled to receive a show cause notice under Article 311 (2) of the Constitution. The First Additional Munsif, Meerut accepted the defendants plea, and held that the order of discharge dated 10-6-1959 was valid. The suit was therefore dismissed. An appeal filed by the plaintiff was dismissed by the First Civil Judge, Meerut. Bhagirath Mal plaintiff has therefore come to this Court in second appeal.