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Mohammad Akhtar v. Union Of India And Others Opposite Parties.

Allahabad High Court

May 10, 1967

Judgment

Subsequent
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Judicial Opinion Summary — Satish Chandra, J.

Factual and Procedural Background

The petitioner sought quashing of an order dated 5-11-1966 by the President of India removing him from service with effect from 22nd November, 1966. The petitioner (identified in the impugned order as Shri Muhammad Akhtar) had been confirmed in 1957 as a Clerk Grade II in the Accounts Department of the North Eastern Railway, Gorakhpur, and was posted in the office of the Financial Adviser and Chief Accounts Officer, Gorakhpur when the removal order was served.

The impugned order stated that the President was satisfied that retention of the petitioner in service was prejudicial to national security and, further, that under sub‑clause (c) of the Proviso to clause (2) of Article 311 of the Constitution it was not expedient in the interest of the security of the State to hold an inquiry. The petitioner challenged the order on grounds that he had not been given an opportunity of explanation required by the Railway Services (Safeguarding of National Security) Rules, 1954 (framed under Article 309), and sought reinstatement.

Legal Issues Presented

Whether the Railway Services (Safeguarding of National Security) Rules, 1954 (made under Article 309) required that the petitioner be given an opportunity of explanation before removal, and if failure to give such opportunity rendered the President's order illegal.
Whether rules framed under Article 309 can impinge upon or override the President's pleasure under Article 310, or the exception created by Proviso (c) to Article 311(2), which allows removal without inquiry if the President is satisfied that holding an inquiry would be inimical to national security.
Whether the President's satisfaction under Proviso (c) to Article 311(2) is justiciable (i.e., amenable to judicial review) and whether the absence of disclosed material or evidence of satisfaction invalidates the order.
Whether the President's power under the proviso is a personal, non‑delegable satisfaction or a satisfaction of the Government (and thus executive in nature), and whether any alleged delegation vitiates the order.

Arguments of the Parties

Petitioner's Arguments

The Railway Services (Safeguarding of National Security) Rules, 1954 (under Article 309) require that, where an employee is charged with retention being prejudicial to national security, an opportunity of explanation must be given; the petitioner was not given such an opportunity.
The rules framed under Article 309 control the exercise of the President's pleasure under Article 310; therefore the President's removal order is subject to those rules and is illegal for non‑compliance.
Relied upon D.N. Dhar v. State of Jammu and Kashmir (A.I.R. 1964 J & K 92) as supportive authority.
Argued that the President could not validly exercise the power unless he personally applied his mind (i.e., contention regarding delegation and the personal exercise of power).
Contended there was no material on which the President could have been satisfied that an inquiry should be dispensed with and implied mala fides in the removal.

Respondent / State's Position (as reflected in the record and counter‑affidavit)

Relying on precedent (notably State of U.P. v. Babu Ram Upadhya and Moti Ram v. N.E. Frontier Railway), submitted that the President's pleasure under Article 310 is subject only to Article 311 and that rules under Article 309 cannot impinge upon Article 310.
Pointed out that the impugned order was issued under Proviso (c) to Article 311(2), which dispenses with the requirement of holding an inquiry when the President is satisfied that an inquiry would be inimical to national security; when the substantive right to an inquiry is removed by the proviso, rules prescribing a mode of giving that opportunity are inapplicable.
Affirmed in the counter‑affidavit that the President was satisfied that an inquiry should not be held and that the order was passed by the President; denied any delegation or mala fides.
Argued that the President's satisfaction under Proviso (c) is not justiciable except on grounds such as mala fides, and no material was produced to prove mala fides or lack of satisfaction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
D.N. Dhar v. State of Jammu and Kashmir, A.I.R. 1964 J & K 92	Invoked by petitioner to support the proposition that rules under Article 309 can control the President's pleasure.	The court noted the decision lends some support to petitioner but held it did not state the correct law on the relationship between Articles 309, 310 and 311.
The State of U.P. v. Babu Ram Upadhya, A.I.R. 1961 S.C. 751	Set out core propositions: (1) holders of public office hold during the pleasure of President/Governor under Article 310; (2) dismissal at pleasure is outside Article 154 and cannot be delegated by Governor; (3) tenure subject to Article 311; (4) Parliament/States cannot abrogate/modify this tenure to impinge on Article 310; (5) legislature can regulate conditions of service without affecting Article 310; (6) legislature can regulate "reasonable opportunity" under Article 311 subject to judicial review.	The court relied on these propositions to conclude that Article 310's pleasure is subject only to Article 311 and that rules under Article 309 cannot impinge upon the President's pleasure under Article 310.
Moti Ram v. N.E. Frontier Railway, A.I.R. 1964 S.C. 600	Held Article 309 and rules made thereunder must be read subject to Articles 310 and 311; Article 311's provisions are paramount within their field.	Followed as authoritative: reinforced that Article 309 cannot impair Article 310 or Article 311; supported conclusion that procedural rules cannot override the constitutional proviso permitting removal without inquiry.
Kedar Nath Pandey v. State of U.P., A.I.R. 1967 All. 197	Followed the Supreme Court's decision in Moti Ram on the relationship between Articles 309, 310 and 311.	Noted as a local precedent following Moti Ram; used to support the same proposition in this Court.
Tarak Nath Ghosh v. Govt. of India, A.I.R. 1967 Patna 81	Patna High Court (Mishra, J.) observed rules are not subject to Article 310 in the sense suggested by petitioner; the Bench was split and other member disagreed.	Court disagreed with Mishra, J.'s observations and explained why those observations do not assist the petitioner, reiterating that rules under Article 309 regulate conditions of service but cannot affect Article 310 pleasure.
B. Eswaraiah v. State of A.P., A.I.R. 1958 A.P. 288	Supports the proposition that when the substantive constitutional guarantee to an inquiry is removed by the proviso, the procedural rules prescribing that inquiry no longer apply.	Cited to support the court's conclusion that Railway Rules prescribing opportunity of explanation cannot govern where Proviso (c) to Article 311(2) removes the right to an inquiry.
Jagdish v. The Accountant General, A.I.R. 1958 Bom. 283	Held a rule under Article 309 does not mean the President has given up powers under Article 310; an order under Art. 310 read with Proviso (c) to Art. 311 cannot be challenged under ordinary Civil Services Rules.	Applied to conclude the impugned order cannot be held illegal for contravening the Railway Services (Safeguarding of National Security) Rules, 1954.
Narendra v. West Bengal, A.I.R. 1962 Cal. 481	Held the satisfaction contemplated under Proviso (c) is the satisfaction of the Government (an executive act), not the personal satisfaction of the Governor; orders in the name of Governor authenticated by Secretary comply with Article 166(2).	Adopted to support the view that the satisfaction under Proviso (c) is executive in nature and that on the facts there was no established improper delegation; counter‑affidavit stated the President was satisfied and passed the order.
Barium Chemicals Ltd. v. Company Law Board, A.I.R. 1967 S.C. 295	Held that subjective executive opinions under statute can be challenged on grounds like mala fides or if the opinion falls outside legislative limits; limited review permissible where legislation defines limits.	Distinguished by the court as inapplicable to a constitutional provision of the type in Proviso (c) to Article 311(2), which confers subjective constitutional power not circumscribed by statutory limits.

Court's Reasoning and Analysis

The court conducted a focused analysis of the constitutional relationship between Articles 309, 310 and 311 and of the nature of the President's satisfaction under Proviso (c) to Article 311(2). The reasoning proceeded along these main lines:

Article 310 (the "pleasure" doctrine) is subject only to Article 311; rules framed under Article 309 cannot abrogate, modify or impinge upon the overriding power vested in the President under Article 310. The court relied on the Supreme Court's decisions in Babu Ram Upadhya and Moti Ram to support this constitutional hierarchy.
The Railway Services (Safeguarding of National Security) Rules, 1954, which prescribe an opportunity of explanation on a charge relating to national security, are rules framed under Article 309 and are intended to operationalize the constitutional guarantee of "reasonable opportunity" under Article 311(2). However, these rules cannot affect or negate the President's power under Article 310 or the exception carved out by Proviso (c) to Article 311(2).
The impugned order was not a simple exercise of Article 310 pleasure but was issued pursuant to Proviso (c) to Article 311(2), which expressly permits removal without holding an inquiry if the President (or Governor) is satisfied that, in the interest of security, it is not expedient to hold such an inquiry. Where the Proviso removes the substantive right to a hearing, procedural rules prescribing that hearing cease to be applicable.
The satisfaction required by Proviso (c) is executive in nature and, as established in prior case law (e.g., Narendra v. West Bengal), is a satisfaction of the Government rather than merely the personal satisfaction of the constitutional head; such executive acts are not normally amenable to the same review as purely statutory administrative decisions.
Judicial review of the President's satisfaction under Proviso (c) is limited. The court noted precedents holding such satisfaction not justiciable except on narrow grounds such as mala fides. The petitioner did not produce any material to substantiate mala fides or to show that the President had not formed the requisite satisfaction.
The record included a counter‑affidavit asserting that the President was satisfied and that the order was passed by him; the petitioner’s complaint was more in the nature of denying that a formal order of satisfaction had been passed rather than alleging the absence of material or mala fides. The court found nothing in the record to disbelieve the counter‑affidavit.
For these reasons, the court concluded that the impugned removal order complied with the constitutional proviso and could not be held illegal merely because the Railway Rules under Article 309 had not been followed.

Holding and Implications

Holding: The petition is dismissed with costs.

Implications:

The removal order issued by the President (effective 22nd November, 1966) stands; the petitioner's challenge to quash that order was unsuccessful and the petitioner was not reinstated as a consequence of this decision.
The court reaffirmed that rules under Article 309 cannot override or impair the President's pleasure under Article 310, and that Proviso (c) to Article 311(2) can validly dispense with the requirement of an inquiry where the President is satisfied that an inquiry would be inimical to the security of the State.
The opinion did not purport to establish any new constitutional principle beyond the application and reaffirmation of existing precedent; the decision operates as an application of established case law to the facts before the court.

Petition dismissed.

Show all summary ...

Satish Chandra, J.:— The petitioner wants that the order passed by the President of India on 5-11-1966 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 North Eastern 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 22nd November, 1966. The impugned order reads as follows:—

“The President is satisfied that the retention of Shri Muhammad Akhtar, Clerk, Grade II, Traffic Accounts Branch, Financial Adviser and Chief Accounts Officer's office, North Eastern Railway, Gorakhpur, in service is prejudicial to national security and that the said Shri 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 hold an enquiry in the case of the said Shri Muhammad Akhtar.

3. Accordingly, the President hereby removes the said Shri Muhammad Akhtar from service with effect from the 22nd November, 1966.”

3. 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 & 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 The State of U.P v. Babu Ram Upadhya A.I.R 1961 S.C 751., the Supreme Court laid down the following propositions (vide paragraph 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 during 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 the Legislatures of States cannot make a law abrogating or modifying this tenure so 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.”

4. 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 paragraph 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 the 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.

5. In Moti Ram v. N.E Frontier Railway A.I.R 1964 S.C 600., the Supreme Court held (paragraph 13) 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.”

6. This decision of the Supreme Court was followed in this Court in Kedar Nath Pandey v. State of U.P A.I.R 1967 All. 197.

7. For the petitioner reliance was placed upon a decision of the Patna High Court Tarak Nath Ghosh v. Govt. of India A.I.R 1967 Patna 81.. There Mishra, J. held that the pleasure of the President means that no employee can necessarily insist upon continuation in the office if the President would not like to retain such a person in government employment. If his services are terminated against law, he should be entitled to claim any other relief but not necessarily reinstatement, in the office he was occupying before. These observations do not help the petitioner. He wants that the order of removal from service be quashed. He wants his office back. Mishra, J. further observed that:

“The contention that the rules are subject to Article 310 of the Constitution in the sense that they do not contain the entire provision in regard to the penalty and procedure etc. in disciplinary matters of the members of the civil service etc. cannot be accepted.”

8. This opinion was not shared by Tarkeshwar Nath, J., the other member of the Bench. He held that Art. 310 was subject to the exception expressly provided in the Constitution. It is not subject to the Acts or the rules that may be foamed under Article 309. With respect, I am not in agreement with the observations of Mishra, J. The rules framed under Article 309 do not deal with the subject-matter of Article 310 at all, namely the pleasure of the President or of the Governor. They cannot affect that pleasure. They are designed to regulate the conditions of service, which regulation is subject to the over all pleasure of the President or the Governor. The provisions in the Railway Service (Safeguarding of National Security) Rules, 1951 for an opportunity of explanation on a charge relating to national security hence, cannot affect the President's pleasure under Article 310 of the Constitution.

9. In any event the impugned order is not one under Article 310 simpliciter. The order has been passed in compliance with Article 311. Proviso (c) to Article 311(2) says that where the President or the Governor, as the case may be, is satisfied that in the interest of security it is not expedient to hold such an enquiry, then clause (2) of Article 311 will not apply. The impugned order states that the President was satisfied that in the interest of security of the State it is not expedient to hold an enquiry in the case. The impugned order, therefore, fulfils the requirements of Article 311. It has not been suggested by learned counsel for the petitioner, and in my opinion it cannot be suggested, that the Railway Services (Safeguardisg of National Security) Rules, 1954 can override the provisions of Art. 311 of the Constitution. Under Proviso (c) an employee is deprived of the reasonable opportunity provided by Article 311(2). The rules under Article 309 are meant and intended to work out the constitutional guarantee of reasonable opportunity conferred by Article 311(2), but, when this guarantee is itself removed by Proviso (c), the rules which only prescribe the mode of giving that opportunity, can no longer govern the rights of the employee. The procedure ceases to be applicable when the substantive right does not exist. See B. Eswaraiah v. State of A.P A.I.R 1958 A.P 288.

10. In Jagdish v. The Accountant General A.I.R 1958 Bom. 283. it was held that a rule under Article 309 does not mean that the President has given up his powers under Article 310, and, the President having passed an order by virtue of his powers under Article 310 read with Proviso (c) to clause (2) of Article 311, the said order cannot be challenged by applying to it the provisions of Civil Services (Classification, Control, and Appeal) Rules. The impugned order, therefore, cannot be held to be illegal on the ground that the Railway service (Safeguarding of National Security) Rules, 1954 were contravened.

11. The next submission of learned counsel was that the President could exercise the power under Article 310 personally. This power cannot be delegated by him. Reliance has, for this proposition, been placed on the second proposition in Babu Ram Upadhya's case mentioned above. The impugned order is not in exercise of the pleasure conferred by Art. 310 simplidter. The order has been passed in compliance with Art. 311. Babu Ram Upadhya's case was not in respect of Proviso (c) to Art. 311(2). The power conferred on the President by that Proviso has been held to be the executive power of the State. In Narendra v. West Bengal A.I.R 1962 Cal. 481. it was held that,

“The satisfaction contemplated under Proviso (c) is not the personal satisfaction of the Governor but is the satisfaction of the Government. Security of the State is the most essential executive act of the State and as such is a matter which is a responsibility not of the Governor but that of the Government. Such act cannot but be the responsibility of the Government and not the personal responsibility of the Governor? It was held that the order dismissing a government servant under Art. 311 issued in the name of the Governor and duly authenticated by a Secretary of the Government is in compliance with Article 166(2). I am in agreement with this view point. On facts, the petitioner has not established that there was any delegation. The counter-affidavit states that the President was satisfied and he passed the order.

12. The last submission of learned counsel was that there was no material on the basis of which the President could be satisfied that in the interest of the security of the State it was not expendient to hold an enquiry under Art. 311(2). No such averment has been made. In the petition it has been stated that the petitioner is a law abiding peaceful citizen of this country and he has no relations with any foreign country or in any foreign country. He is not a member of any political, social or cultural organisation. He does not do anything else except performs the prayers five times or attends religions discourses. In 1958 A.P 288, Subba Rao, C.J held that the said power is not circumscribed by any objective standard and, therefore, it cannot be questioned in a court of law except on the ground of mala fides. Similarly in 1958 Bom. 283 it was held that the satisfaction of the President was not justiciable. Proviso (c) requires the satisfaction of the President about the expediency of not giving an opportunity to the employee concerned in the interest of the security of the State. To make such a matter justiciable, would mean that the court should also be satisfied about its expediency. This would amount to substituting the satisfaction of the court in place of the satisfaction of the President. If courts were to demand proof of such satisfaction and the evidence of material on which the satisfaction is reached, the courts would be virtually depriving the President of the powers and confidence which the Constitution in its wisdom has reposed in the President. These observations were followed by the Calcutta High Court in the case of Narendra (A.I.R 1962 Cal. 481).

13. For the petitioner reliance was placed upon the case of Barium Chemicals Ltd. v. Company Law Board A.I.R 1967 S.C 295.. Under Sec. 237(b) of the Companies Act, 1956 the Central Government could order an investigation if in its opinion the circumstances set out in sub-clauses (i), (ii) or (iii) of that provision existed. The Supreme Court held that the opinion of the Central Government on which such an order could be passed being subjective could not be challenged on the ground of propriety or sufficiency but it could be challenged on the ground of mala fides or on the ground that it was beyond those limits mentioned in clauses (i), (ii) or (iii) or was passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In these situations it could be said that the authorities did not honestly form the opinion or that in forming it they did not apply the mind to the relevant facts. This case is inapplicable. There the formation of the opinion was restricted by legislative provisions. The opinion had to be relevant to and within the content of the provisions. That case does not deal with a constitutional provision. Clause (c) of the proviso to Article 311(2) confers power on the President to his subjective satisfaction. Such a constitutional conferment of power is not justiciable at all.

14. Moreover, on facts no materials have been placed to suggest that the President was not satisfied or that the President did not apply his mind to the question. The petitioner has only alleged that in fact no orders had been passed by the President satisfying himself that it is not expedient in the interest of the security of the State to hold an enquiry. This is not an allegation that there were no materials or that the President did not satisfy himself. The Petitioner's grievance seems to be that the President has not passed any order to that effect and not that the President was not satisfied. This allegation has been denied in the counter affidavit where it is stated that the President was satisfied that in the interest of security of the State it is not expedient to hold an enquiry. It has also been stated that the impugned order was passed by the President. There is nothing to disbelieve this statement in the counter-affidavit.

15. It has also been alleged that the petitioner did not commit any subversive act and the authorities, merely to terminate the services of the petitioner, have acted mala fide in removing the petitioner from service under the garb of the national security. No material has been placed in support of this bald allegation. There is no suggestion that there was any ill-will between the petitioner and the President of India or the Deputy Director, Railway Board who has authenticated the impugned order. This allegation seems to be perverse.

16. In the result, the petition fails and is dismissed with costs.