Subba Rao, C.J..:-

(1) This is an application under article 226 of the constitution of india for issuing a writ of certiorari to quash the order of the 2nd respondent, dated 7th february, 1955.

(2) The petitioner was appointed as a clerk in the office of the district registrar, anantapur, in or about march, 1947. In october, 1953, the supreintendent of police, special branch, c. I. D. , gave information to the district registrar, anantapur, that the petitioner was participating in the activities of the rashtriya swayam sevak sangh and that he attended the r. S. S. Training camp at vijayawada from 2nd may, 1953 to 2nd june, 1953. Thereupon, the district registrar issued to the petitioner a notice, dated 19th november, 1953, wherein he stated that he has reasonable grounds for believing that the petitioner attended the r. S. S. Training camp organised by the provincial ra htriya swayam sevak sangh at vijayawada from 2nd may, 1953 to 2nd june, 1953 and also associated with others in subversive activities in such manner as ,to raise doubts about his reliability and that consequently he was liable to be compulsorily retired. The petitioner was given 14 days' time from the date of the receipt of the notice to show cause why he should not be compulsorily retired from service. On 30th november, 1953, the petitioner invited the attention of the district registrar to article 311 of the constitution of india and pointed out that, until he was furnished with a copy of the reasonable grounds he would not be in a position to defend himself. He also requested him to furnish him with all the material on which the charge was based and also the reasons according to which the charge was framed with reference to the material available to him. He also expressed his apprehensions that the district registrar was prejudiced against him. On 12th december, 1953, the registrar, without furnishing the necessary particulars, replied that the charge was specific and enquired whether he wished to make any representations on the action proposed to be taken against him and whether he desired to be heard in person. He was also informed that, if his replies were not received before 25th december, 1953, it would be presumed that he admitted the allegations and had no representations to submit on the action proposed to be taken against him. On 24th december. 1953, the petitioner denied the allegations made against him. He prominently brought out in his representations that the notice did not specify the subversive activitie wherein he was alleged to have taken part with others and that till the said activities were specified with sufficient particulars, he was unable to reply more specifically to the allegations. He expressed his wish that he should be heard in person. He alle ed that the rules were ultra vires and void and that they offended the fundamental rights guaranteed to him under the constitution of india. On 24th december, 1953, the registrar directed the petitioner to appear before him in person on 23rd january, 1954. On 23rd january 1954, the petitioner appeared before the registrar, and made a statement. Therein he stated that he took causal leave on the 2nd, 4th and 5th of may, 1953, with permission to avail sunday the 3rd of may, 1953, to proceed to vijayawada along with his friends, the members of rashtriya swayam sevak sangh to get himself treated there for his ailment. There, he got himself examined by dr. Dakshinamurthi on 3rd may, 1953, who advised him to take medical leave for 45 days. He admitted that he attended the r. S. S. Training camp in the s. R. R. And c. V. R. College at viyayawada and participated in its physical activities. After 13th may, 1953, as he developed a guinea worm abscess in his right foot, he was not able to take any active part in physical activities but used to go and watch the activities of others in the training camp. After 2oth may, 1953, he was confined to bed. On 31st may, 1953, the abscess was opened and he left vijayawada on 2nd june, 1953 and reached anantapur on 3rd june, 1953. Again, he repeated before the registrar that he did not take any part in any subversive activities and that, if he was given a chance to know with whom and in what manner he associated with others in subversive activities, he would be able to clarify his position further. He asserted that the sangh's activities were never subversive and that the sangh was neither a political nor subversive organisation. He pleaded that, except being a member of the said o ganisation from the year 1947, he was not guilty of any subversive activities. He complained that as no grounds on which the charges have been framed were served on him, he was handicapped in his defence. The district registrar in his order dated 16th june, 1954, after narrating the aforesaid circumstances proceeded to state thus :

"on his own admission, sri b. Eswaraiah has been a member of the rashtriya swayam sevak sangh since november, 1947, discharging his obligations fully, subscribing funds and continuing to participate in the activities of that organisation and he has also attended the r. S. S. Training camp at vijayawada in company with other members of the r. S. S. Government have held that rashtriya swayam sevak sangh to be a subversive organisation. That sri b. Eswaraiah attended the r. S. S. Training camp at vijayawada or ganised by the provincial r. S. S. Sangh from 2nd may, 1953 to 2nd june, 1953, when he went on sick leave from here during may, 1953 and that he associated with others in subversive activities as to raise doubts about his reliability as alleged in the first of the papers cited above, have been conclusively proved to be correct. Sri b. Eswaraiah is, therefore, finally called upon to show cause within five days of the receipt of these proceedings as to why he should not be compulsorily retired from service as per the madras civil services (safeguarding of national security) rules, 1949"

(3) It will be seen that the only reason given by the registrar for the drastic action was that the petitioner was a member of the rashtriya swayam sevak sangh and took part in its activities and that the government held that the said sangh was a subversive organisation. The petitioner made representations on 16th june, 1954, wherein he pointed out that he was not aware of the fact that the government had held the rashtriya swayam sevak sangh to be a subversive organisation and r quested that he might be furnished with a copy of such a finding by the government and that no evidence in support of that finding was recorded before him. He fu ther alleged that the r. S. S. Activities in general and particularly those, in which he was alleged to have participated, had always been free from subversive activities and that, if a copy of the government's decision was furnished to him, he would be in a position to satisfy the enquiring officer that it could have no bearing on the present events. He specifically requested that he should be given a hearing after he was supplied with a copy of the resolution of the government on r. S. S. Activities. Subsequently, the committee appointed by the government consisting of the chief secretary, the revenue secretary and the law secretary of the government of andhra and the deputy inspector - general of railways and c. I. D. Considered the representations made by the petitioner and, after giving him a personal hearing, recommended his compulsory retirement from service and the government of andhra made an order, dated 3rd february, 1955, directing his compulsory retirement. On those facts, sri manavala chowdhury, learned counsel for the petitioner, raised before us various points questioning the validity of the said order, which we would proceed to consider seriatim.

(4) The first contention is that the registrar as well as the government did not give the petitioner reasonable opportunity of showing cause against the action proposed to be taken in regard to him within the meaning of article 311 of the constitution of india. We should have had no hesitation on the aforesaid facts to hold that no resonable opportunity was given to the petitioner in this case. No particulars of the subversive activities of others with whom the petitioner had been associated were given to him and a copy of the order, wherein the government is alleged to have held that the r. S. S. Was guilty of subversive activities, was not disclosed to him.

(5) In the circumstances, the order made by the government on the basis of certain allegations of which no particulars were given and in regard to which no real opportunity was given to the petitioner to controvert the said facts, could not be said to be one made after complying with the provisions of article 311 of the constitution of india. But, in this case, the governor made an order under clause (c) of the proviso to clause (2) of article 311 of the constitution which reads :

"provided that this clause shall not apply - (c) where the president or governor as the case may be is satisfied that in the interest of the security of the state it is not expedient to give tp that person such an opportunity."

"i am directed to state that your representations, dated the 24th december, 1953, in reply to the notice served on you by the district registrar, anantapur, in letter no. Nil, dated 19th november, 1953, your personal representation, dated the 23rd january, 1954. , before the district registrar, anantapur and your final representation, dated 6th july, 1954, in reply to the notice served on you by the district registrar in his proceedings no. 1152 - est. , mated 16th june, 1954, have been carefully considered by the governor and he is of the opinion that you are engaged in subversive activities and that your retention in the public service is on that account prejudicial to national security. 2. The governor of andhra is satisfied, under clause (c) of the proviso to clause 2 of article 311 of the constitution of india that in the interest of the security of the state, it is not expedient to give you any opportunity of showing cause against the action proposed to be taken in regard to you. 3. Accordingly, the governor in view of the opinion he has formed regarding you, hereby orders under rule 3 of the andhra civil services (safeguarding of national security) rules, 1954, that you be compulsorily retired from service with immediate effect"

Paragraph 2 of this order incorporates the subjective satisfaction of the governor under clause (c) of the proviso to clause (2) of article 311 to exclude the operation of article 311 in the interest of the security of the state. The learned counsel contends that the order of the governor is mala fide and is a fraud on his powers. He argues that though the entire enquiry disclosed an intention on the part of the government to give a reasonable opportunity within the meaning of article 311 of the constitution of india, the governor relied upon his extraordinary power under clause (c) when it became absolutely clear that there was no ground to take action against the petitioner. Clause (c) of the proviso to clause (2) of article 311 in terms confers unrestricted power on the governor in the interest of the state to deprive a particular officer of the reasonable opportunity provided by article 311 of the constitution of india. The said power is not circumscribed by any objective standards and, therefore, it cannot be questioned in a court of law. It may be that if a party establishes by placing relevant material before the court that the governor made the order mala fide or for ulterior purposes, the order may be set aside, on the ground that it is a fraud on power. But, in this case, there is no such allegation much less has any relevant material been placed before us to substantiate that the governor has invoked his power not honestly but for ulterior purposes. We, therefore, hold that the order of the governor made under clause (c) is valid and if so, the petitioner is deprived of the constitutional safeguard provided for him under article 311 (2). It is not suggested that any other clause of article 311 has been infringed in this case. As there is no infringement of the constitutional safeguards, the petitioner, who holds office during the pleasure of the governor, cannot claim any protection from this court.

(6) Even so, it is contended that the respondents infringed the provisions of the statuory rules, namely, the andhra civil services (safeguarding of national security) rules, 1954. The material rule is rule 4, which reads : -

" 4. Before an order under rule 3 is made - (a) the competent authority shall, by notice in writing, inform the government servant of the action proposed to be taken in regard to him and give him an opportunity to make to the governor within such period as may be specified in the notice, representation in writing against that action ; (b) the governor shall take into consideration the representation, if any, so made by him"

It is contended by the learned counsel for the petitioner that the statutory rules are as much binding upon the government as upon a subject, while theadvocate - general contends that a government servant holds office during the pleasure of the governor and that so long as the constitutional safeguards provided for him are not infringed, he cannot question the order of the governor in any court of law.

(7) The rules were made by the governor under article 309 of the constitution of india and therefore they are statutory rules. But those rules only provide a machinery for working out the constitutional right of a government servant to give him the reasonable opportunity vouchsafed to him under article 311 (2) of the constitution of india. When the safeguard itself is removed by the order of the governor under clause (c) of the proviso to clause (2) the rules, which only prescribe the mode of giving that opportunity to a particular class of officers, can no longer govern the rights of the petitioner. The procedure ceases to apply when the substantive right itself no longer exists. We, therefore, hold that the government was within their rights in dispensing with the services of the petitioner without giving him a reasonable opportunity.

(8) The advocate - general pressed upon us to hold that the compulsory retirement of a government servant cannot be brought under the three categories of punishments in regard to which a reasonable opportunity should be given under article 311 (2) of the constitution. He says that compulsory retirement is neither a dismissal, nor removal or reduction in rank within the meaning of that article and, in support of that contention, he relies upon a judgment of the supreme court in shyam lal v. State of uttar pradesh, 1954 s. C. J. 493.

(9) In that case, the supreme court held that compulsory retirement dqes not amount to dismissal or removal and, therefore, does not attract the provisions of article 311 of the constitution of india. But the supreme court was only concerned in that case with the rules providing for compulsory retirement after completing 25 years qualifying service or more. At page 502, their lordships observed :

"the two requirements for compulsory retirement are that the officer has completed 25 years' service and that it is in the public interest to dispense with his further services. It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in note 1 to article 465 - a make it abundantly clear that the imputation or charge is not in terms made a condition for the exercise of the power. In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity. In other words, the enquiry was to help the government to make up its mind as to whether it was in the public interest to dispense with his service"

(10) The question whether an order of compulsory retirement dehors the said rule as a mode of punishment would be ' removal' within the meaning of article 311 was neither raised nor decided in that case. It is not the phraseology used by the government that matters but the actual effect of the order made. Whether a particular order is one or other of three orders mentioned in article 311 (2) is a question of fact to be decided on the facts of each case. Though we are inclined to hold that, on the facts of this case, where the government servantwas compulsorily retired a few years after his entertainment in service on the ground of his taking part in subversive activities, it was prima facie an order of removal within the meaning of article 311 of the constitution of india. We do not propose to express our final opinion on the said question as, in the view we have expressed on the effect of the order made by the governor under clause (c) of the proviso to clause (2) of article 311, this question does not arise for consideration.

(11) Learned counsel then argued that rule 3 of the andhra civil services (safeguarding of national security) rules, 1954, offends the petitioner's fundamental right under article 14 and under article 19 (1) (a) and (c) of the constitution of india. This question really becomes academic as we have held that the governor validly exercised his power under article 311 (2) and, therefore, the aforesaid rule along with others do not bind him in the exercise of discretion. But, in deference to the arguments advanced, we shall briefly touch upon the points. The said rule reads : -

"where the governor is of opinion that a government servant is engaged in or is reasonably suspected to be engaged in subversive activities, or is associated with others in subversive activities and that his retention in the public service is, on that account, prejudicial to national security, the governor may make an order compulsorily retiring such government servant from service."

(12) The contention is that the words ' subversive activities ' are so vague that they confer a naked and arbitrary power on the governor and, therefore, are not only obnoxious to the equality clause but also to the fundamental right of freedom of speech and expression and to form associations. To support this argument, american and indian decisions are cited at the bar wherein courts have either struck down statutory provisions as offending the equality clause of the doctrine of due process or sustained the same on the ground that they were free from the said vice.

(13) Some of the decisions relied upon by the learned counsel for the petitioner relate to penal laws creating offences utilising vague phraseology and making it impossible to ascertain the content of the offence with any definiteness. Such acts were struck down by american courts as offending the doctrine of due process. See state of mexico v. Jack diamond, 20 am. Law r. (anno.) 1527. Murray winters v. New york, 92 law. Ed. 840. And united states v. Cohen grocery co. , 65 law. Ed. 516. So too, indian decisions of the supreme court and high courts have struck down laws conferring naked and arbitrary powers without providing any ascertainable standards. Can it be said that, in the present case, the rule is so vague or the power conferred thereunder so arbitrary as to offend the equality clause enshrined in article 14 of the constitution. The power is entrusted to the highest executive authority in the state. The standard is set by the following phrase namely 'subversive activities prejudicial to national security'. Under that rule, the governor may compulsorily retire a government servant only if he is satisfied that he is guilty of subversive activities directly or indirectly and that his retention in service is prejudicial to national security. It may be that the words ' subversive activities ' are comprehensive enough to take in a variety of activities not susceptible of easy definition or ascertainment but read in the context of 'prejudicial to national security ' would afford on ascertainable standard for the governor to take action thereunder. The fact that the highest executive authority in the state is entrusted with the power to function under that clause is also a gurantee that the power will not be abused. We, therefore, hold that the rule does not offend article 14 of the constitution.

(14) The same argument is clothed in a different garb. It is said that the rule is an unreasonable restriction on the petitioner's fundamental right of freedom of speech and expression and to form association under article 19 of the constitution. In this context, an interesting case of the american supreme court in wieman v. Updegraff, 97 law. Ed. 216. Is cited. There a state statute sought to bar disloyal persons from state employment by requiring employees to disavow membership in or affiliation with specified organisations. The supreme court held that the act was invalid as a violation of the fourteenth amendment to the federal constitution, upon the ground that it created a conclusive presumption of disloyalty of one who had been a member of or affiliated with a proscribed organisation regardless of such persons' knowledge at the tune of membership of the purpose and nature of such organisation and was in this regard an assertion of arbitrary power. Clark, j. , at page 220 graphically; describes the concern of the courts in balancing conflicting rights of the government and a citizen during troublous times thus :

"during periods of international stress, the extent of legislation with such objectives accentuates our traditional concern about the relation of government to the individual in a free society. The perennial problems of defining that relationship becomes acute when disloyalty is screened by ideological patterns and techniques of disguise that make it difficult to identify. Democratic government is not powerless to meet this threat, but it must do so without infringing the freedoms that are the ultimate values of all democratic living. In the adoption of such means as it believes effective the legislature is, therefore, confronted with the problem of balancing its interest in national security with often conflicting constitutional rights of the individual. In a series of cases coming here in recent years, we have had occasion to consider legislation aimed at safeguarding the public service from disloyalty"

(15) After making the aforesaid general observations, the learned judge considered the case - law on the subject and proceeded to state at page 222 :

"there can be no dipute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one ; indeed, it has become a badge of infamy. Especially is this so in time of cold war and hot emotions when ' each man begins to eye his neighbour as a possible enemy '. Yet under the oklahoma act, the fact of association alone determines disloyaltty and disqualification ; it matters not whether association existed innocently or knowingly. To thus inhibit individual freedom of movement is to stifle the flow of democratic expression and controversy at one of its chief sources '. Indiscriminate classification of innocent with knowing activity must fall as an assertion of arbitrary power"

Black, j. , agreed with clark, j. , in holding that a state act prescribing test oath was fatally offensive to the due process guaranteed under the united states constitution. The learn d judge observes:

"the oklahoma oath statute is but one manifestation of a national network of laws aimed at coercing and controlling the minds of men. Test oaths are notorious tools of tyranny. When used to shackle the mind they are, or at least they should be, unspeakably odious to a free people. Governments need and have ample power to punish treasonable acts. But it does not follow that they must have a further power to punish thought and speech as distinguished from acts. Our own free soci ty should never forget that laws which stigmatize and penalize thought and speech of the unorthodox have a way of reaching, ensnaring and silencing many more people than at first intended. We must have freedom of speech for all or we will in the long run have it for none but the cringing and the craven"

(16) The other judges agreed with his conclusions. We have cited extracts from the judgment in extenso as they reveal a refreshing outlook and a genuine anxiety to protect citizens against arbitrary acts and the curtailment of freedom of speech. They also demonstrate that a government servant is as much entitled to the protection of his cherished rights as any other citizen of the country. This decision lays down that statutory insistence of test oath by an employer that an employee has not been a member of or affiliated with certain specified organisations irrespective of his knowledge of the nature of and purpose of such organisations at the time of membership is violative of the due process both on the ground that such requirement is arbitrary and also for the reason that it offends the right of freedom of thought, speech and expression. Can it be said that rule 3 is an unreasonable restriction on the petitioners fundamental right? there is no analogy between the rule laying down test oath in the american case and the rule conferring on the governor power to compulsorily retire a government servant engaged in or associated with others in subversive activities prejudicial to national security. As we have pointed out, the rule provides not only an ascertainable standard but carries with it the guarantee of the application of that, standard by the highest executive authority of the state. In the words of chandrasekhara ayyar, j. , delivering the judgment of the supreme court in matajog dobey v. H. C. Bhari, 1956 s. C. J. 110.

" discretionary power is not necessarily discriminatory power and that abuse of power is not to be easily assumed where the discretion is vested in the government and not in a minor official."

(17) We would, therefore, hold that rule 3 is a reasonable restriction on the funda mental rights of the petitioner within the meaning of article 19 of the constitution even so it is contended that while the rule may be constitutionally good, the present order of the governor made in exercise of the power conferred under that rule is obnoxious to the petitioner's fundamental right under article 19 of the constitution.

(18) It is true that, though a statutory rule may be good, a particular act done by an authority in exercise of power under the rule may be bad and, therefore, liable to be quashed. Can it be said that the order of the governor in the present case is an unreasonable restriction on the petitioner's fundamental right of freedom of speech and association under article 19 (1) of the constitution. Ordinarily, we should have had no difficulty to hold that it was such a restriction as the order was made without giving a reasonable opportunity to the petitioner within the meaning of article 311 of the constitution of india. But we have held that, in view of the order of the governor made in exercise of his powers under clause (c) of the proviso to clause (2) of article 311 of the constitution, the petitioner was validly deprived of his constitutional guarantee under article 311 (2). If so, he held the office during the pleasure of the governor and his service could have been terminated at any time with or without reason. The fact that the governor gave some reasons for the termination of the petitioner's service could not be invoked to impose limitations on the governor's unrestrict d power to dispense with his services. The exercise of the gov rnor's pleasure is not inconsistent with the petitioner's fundamental right of freedom of speech, etc. Notwithstanding the governor's order the petitioner is not prevented from exercising his fundamental right of speech or association. Nothing prevents him from continuing to be a member of the rashtriya swayam sevak sangh and taking part in its activities. To hold otherwise would be to impose conditions on the unrestricted power of the governor to dispense with the services of a government servant. In this view the petitioner's fundamental rights under article 19 are not, in any way, infringed. In the result the application is dismissed but in the circumstances without costs. Writ petition dismissed.