S FRAMJI Vs. UNION OF INDIA

JUDGEMENT

(1.) Arather interesting, and by no means easy, Constitutional question arises in this appeal. The plaintiff, whose suit was dismissed by the learned City Civil Court Judge on a preliminary issue, was a guard in the North Western Railway in Grade I and he was appointed on 24-4-1929, being confirmed on 30-1-1930. Then for a short time he acted as Grade II guard and he was made permanent in that Grade in 1944. On partition he opted for India and he served in the B. B and C. I. Railway as it existed in 1947. On 31-1-1950 his post in the North Western Railway was equated to a Grade C post and he filed this suit stating that the order passed on 31-1-1950 ordering him to work as a C Grade guard was invalid. He also sought a declaration that he was entitled to rank as a B Grade guard from the date when he was absorbed as a guard in the B. B. and C. I. Railway, and he also claimed a declaration that he was entitled to rank in seniority as a guard and to receive promotions, pay, confirmation, allowance, contribution in the Provident Fund, etc. on the length of his service as a guard on the North Western Railway commencing from 29-4-1929, and he wanted an order that the various emoluments to which he would be entitled on his being treated as a Grade B guard should be paid to him. The suit was filed against the Union of India represented by the General Manager, Western Railway, in which the B. B. and C. I. Railway had merged after Independence, and the question that arises is whether the plaintiff has any cause of action against the Union of India.

(2.) The question may be posed in this way. Can a servant of the State sue the State in respect of any condition of service relating to his employment? TO put the question in different way, would it be correct to say that the statutory rules framed by the Railway conferred any right upon a Government servant, which right he can assert and enforce in a Court of law ? Or, again to put the same questioning a different language, are the rules framed by the Railway Authority, which are undoubtedly statutory rules, mere rules of guidance and administrative rules, or do they constitute a contract between the Union of India and its employee? The case of the plaintiff is that under the Indian Railway Establishment Code, which is a statutory Code, he has the right to be posted as a Grade B guard, that his right has been infringed, and he is entitled to come to a Civil Court against the Union of India to enforce his right.

(3.) Turning to the Constitution, Part XIV of the Constitution deals with services under the Union and the States, and Article 310 provides that every person who is a member of the defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union holds office during the pleasure of the President. The latter part of that Article, with which we are not concerned, deals with members of the civil service of a State. As will be noticed, Article 310 is made subject to any provision expressly made in the Constitution itself. That is the only exception which the Constitution has permitted to that Article. Unless, therefore, we find a specific provision in some part of the Constitution giving to a Government servant a tenure different from the tenure provided for in Article 310, every member of the civil service holds his office during the pleasure of the President. Those statutory exceptions in the case of Judges of the High Court and the Supreme Court, the Accountant General and certain other high dignitaries of the State whose tenure of office is a fixed tenure and who are not holding their office at the pleasure of the President. Now, the expression "holding office during the pleasure of the President" is not a new expression introduced by the Constitution. It is an expression well known to the English Common Law. Under the English Common Law, every servant in England holds his office during the pleasure of the Crown. One view of Article 310 is that it only deals with the tenure of office and all that it provides is that the President can dismiss and civil servant at pleasure. The other view, which is a possible view and which has been taken in England, is that when a Government servant holds office at the pleasure of the King or the President, it connotes not merely that his services are terminable at the pleasure of the King or the President, but further that the services under Government is not a creature of contract and cannot be regulated by terms of a contract, that the relationship between a Government servant and Government is not contractual, and that no term of service can be made justiciable, nor can a Government servant assert any right relating to his service in a Court of Law. Article 311 confers certain Constitutional rights upon a civil servant and undoubtedly a breach or infringement of any of the statutory rights afforded to a civil servant under Article 311 confers a right upon him and he can come to Court and complain of the breach or infringement. There is no difficulty so far as that position is concerned. But the difficult so far as that position is concerned. But the difficulty arises when one has to consider whether a civil servant has any rights other than the rights conferred by Article 311, and in this conniption reliance is placed on Articles 309 and 313. Article 309 deals with the power of the appropriate Legislature to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. This is a power conferred upon the Legislature to be exercised after the Constitution came into force, and the proviso makes it competent for the President or such person as he may direct to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature. And Article 313 keeps in force all laws immediately before the commencement of the Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution; and it is not disputed that the Indian Railway Establishment Code is a law within the meaning of Article 313 which was in force immediately before the commencement of the Constitution.