M RAMANATHA PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) TWO questions arise in this petition under Art. 226 of the Constitution of India. They are: (1) Whether the removal of the petitioner from service has infringed Art. 311; and (2) Whether, even if Art. 311 is not infringed, the petitioner is entitled to any relief on the ground of equitable estoppel.

(2.) THE facts may be stated thus: A Vigilance Commission was constituted for the State of Kerala by Ext. RI order dated 29 51965 and by Ext. R2 order dated 16 41966 the constitution, jurisdiction, powers and functions of the Commission were defined. THE post with which we are concerned in this case is the post of the vigilance Commissioner. According to Ext. R2, the Vigilance Commissioner was to hold office for a period of three years from the date he assumed charge or till he attained the age of 62, whichever occurred first. THE post of the Vigilance commissioner was sanctioned by Ext. R6 dated 26101965. Ext. R6 is in these terms: "in modification of the order issued in the G. O. read as third paper above, Government accord sanction for the creation of a temporary post of Vigilance Commissioner on a consolidated pay of Rs. 2500/- (Rupees two thousand and five hundred only) per mensem for a period of three years from 3 61965 i. e. the date on which Sri P. D. Nandana Menon assumed charge as Vigilance Commissioner. " THE continuance of the temporary post of Vigilance commissioner for a further period of one year from 3 61968 was ordered on 2411968 by Ext. R7 and this was followed by Ext. R8 dated 15 111968 according sanction for the continuance of the post till 28-2-1970. In the meantime, Shri p. D. Nandana Menon who was the first Vigilance Commissioner, retired, and by ext. R3 dated 24 91968, the petitioner was "appointed as Vigilance commissioner on a consolidated pay of Rs. 2500 (Rupees two thousand and five hundred only) p. m. fora term of three years from the date of his assuming charge". THE petitioner assumed charge on 310 1968. On 2111968, Ext. R2 was modified by Ext. R4, and it was ordered that the Vigilance Commissioner will hold officer for a period of five years or till he attained the age of 60 years, whichever occurred first. This was followed, on 20-12-1968, by the agreement between the petitioner and the State Government evidenced by Ext. P2, and this agreement provided that the petitioner will serve as Vigilance commissioner for a period of five years. We must point out one provision in ext. R2 to the effect that the petitioner can be removed from service only in the manner in which the Chairman of the Public Service Commission constituted for a State can be removed under the Constitution of India. Provisions similar to those contained in the Constitution of India in regard to the removal of the chairman of the Public Service Commission are incorporated in the agreement, ext. P2, about the removal of the Vigilance Commissioner. Notwithstanding the above provisions, a term of five years, and the provision that he can be removed only in the manner in which the Chairman of the Public Service commission can be removed, Ext. P3 order has been passed, on 24 21970, abolishing the post of the Vigilance Commissioner with effect from 28 21970. Nothing is mentioned in this order as to what is to happen to the petitioner. But, it is stated in the counter-affidavit filed on behalf of the State government that the Vigilance Commission itself has been abolished and that the personal working in the Commission who were regular Government servants on deputation from other Government departments have been withdrawn. THE petitioner thus found himself in the curious position of having an agreement with the State Government to serve the State for a period of five years as vigilance Commissioner but with the post of Vigilance Commissioner and the vigilance Commission itself abolished.

(3.) THE first question that arises for consideration is whether there has been violation of Art. 311 of the Constitution. Art. 311, in so far as it is relevant for the purposes of this case, reads as follows: "311. (1) 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, (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation of the penalty proposed, but only on the basis of the evidence adduced during such inquiry:"