PETITIONER:
MYSORE STATE ROAD TRANSPORT CORPORATION
Vs.
RESPONDENT:
MIRJA KHASIM ALl BEG & ANR.
DATE OF JUDGMENT01/12/1976
BENCH:
SINGH, JASWANT
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION:
1977 AIR 747 1977 SCR (2) 282
1977 SCC (2) 452
ACT
Service matter--Person. employed in one State trans-
ferred to another on’ States’ Reorganisation--No post in the
new State equivalent to that of appointing authority in the
old State--If Government servant could be dismissed by an
officer lower in rank than the appointing authority.
HEADNOTE
Under s. 115(7) of the States Reorganisation Act, 1956,
nothing contained in that section could, after the appointed
day, i.e. November 1, 1956, affect the operation of the
provisions of Chapter I of Part XIV of the Constitution in
relation to the determination of conditions of service of
persons serving in connection with the affairs of the Union
or any State. The proviso provides that the condition of
service applicable immediately before the appointed day to
any person who is allotted to another State could not be
varied to his disadvantage except with the previous approval
of the Central Government.
The respondents, who were bus conductors in the State
Road Transport Department of the former State of Hyderabad,
were allotted to the State of Mysore consequent upon the
reorganisation of the States in 1956 and they continued to
hold the same posts under the Mysore Government Road Trans-
port Department. They were dismissed from service by the
Divisional Controller of Mysore Government Road Transport
Department and the order of dismissal was affirmed by the
General Manager of the Department. The orders of dismiss-
al were challenged on the ground that since they were ap-
pointed by the Superintendent of the Traffic Department of
the former State of Hyderabad, who was the Head of that
Department they could be dismissed only by the General
Manager of the Mysore State Road Transport Department and
that their dismissal by the Divisional Controller, who was
not the. Head of the Department, was in violation of the
right guaranteed under Art. 311 of the Constitution. The
High Court struck down the order of dismissal.
On appeal by the State it was contended that (1 ) since
the post of Superintendent of Traffic Department did not
exist in the State of Mysore and the Divisional Controller
was the competent authority to appoint’ and dismiss servants
of the category to which the respondents belonged, their
dismissal was not incompetent in view of s. 116(2) of the
States Reorganisation Act, 1956; (2) There was substantial
compliance with Art. 311 because the order of dismissal was
confirmed by the General Manager; (3) Since the posts were
not civil posts under the State, there was no violation of
Art. 311; (4) The discretionary relief of declaration of
continuance in service could not have been granted in this
case; and (5) the respondents were dismissed before. the
establishment of the Corporation and since they did not
exercise their option to join the Corporation, no decree
could be passed against the Corporation.
Dismissing the appeals,
HELD: The respondents could not have been dismissed from
service by an authority lower or subordinate in rank to the
General Manager of the Transport Department as it would
tantamount to deprivation of the guarantee in,Art. 311 of
the Constitution read with s 115(7) of the State Reorgani-
sation Act. That there was no post of Superintendent of
Traffic under the Mysore.Government Road Transport Depart-
ment is of no consequence. [291 F]
283
1 (a) The protection enjoyed by persons holding civil
posts under the State like the respondents prior to the
coming into force of the Act could not after the appointed
day, be taken away, whittled down or impaired by any
legislative enactment or rule. The broad purpose underlying
the section was to ensure that the conditions of service of
persons mentioned therein shall not be changed except with
the prior approval of the Central Govt. [288 E;B]
(b) The expression ’condition of service’ is an expres-
sion of wide import and the dismissal from service is a
matter which falls within the conditions of service of
public servants. It is not possible by means of any legis-
lative provision. or rule to take away the guarantee provid-
ed by Art. 311(1) and if any legislative provision or rule
lays down otherwise, it will be ultra vires. [288 D]
M.D. Shukla & Ors. v. State of Gujarat & Ors. [1970] 3
SCR 515; N. Raghavendra Rao v. Deputy Commissioner, South
Kanara, Mangalore [1964] 7 SCR 549; North West Frontier
Province v. Suraj Narain Anand 75 I.A. 343; AIR 1949 P.C.
112; Pradyat Kumar Bose v. The Hon’ble the Chief Justice
of Calcutta High Court [1955] 2 SCR 1331;-State of Madhya
Pradesh & Ors. v- Shardul Singh [1970] 3 SCR 302; and Ranga-
chari v. Secretary of State 64 I.A. 40: AIR 1937 P.C. 27,
followed.
(c) The expression ’competent authority’ in s. 116(2) of
the Act must be read in conjunction with, construed and
understood as having the same meaning as the expression
’appropriate authority’ contemplated by s. 116(1) and
Art..311(1) which means the appointing authority or an
authority equivalent to or co-ordinate in rank with the
appointing authority, [289B]
(d) The power to dismiss a Government servant from
service can be conferred on an officer other than the ’a-
ppointing authority provided he is not subordinate in rank
to the appointing officer or authority. [291 B]
The State of U.P. & Ors. v. Ram Naresh Lal [1970] 3 S.C.R.
173, applied.
N. Somasundaram v. State of Madras A.I.R. 1956 Mad. 419;
Sobhagmal v. State A.I.R 1954 Raj 207, Gurmukh Singh v.
Union of India A.I.R. 1963 Punjab 370; Mahadeo Prasad Rao
v.S.N. Chatterjee & Ors. A.I.R. 1954 Patna 285 and State
of Jammu & Kashmir and Anr. v. Raj Mohammad & Ors. 1971 J &
K L.R. 558. approved.
In the instant case by virtue of s. 116(1) the
respondents were deemed to have been appointed from November
1, 1956 in the State of Mysore by the appropriate authori-
ty which could not be the authority other than the one
equivalent-to or coordinate in rank with the authority
which appointed them in the erstwhile State of Hyderabad.
The General Manager of the Mysore Department could alone be
considered to be the competent authority in terms of s.
116(2). [291 D]
(2) The original order of dismissal being without jurisdic-
tion and as such void and inoperative, the order passed on
appeal by the General Manager could not cure the initial
defect. [292 A]
(3) Both at the time of coming into force of the States
Reorganisation Act, 1956 and at the time of the passing of
the impugned orders, the respondents were holding civil
posts in connection with the affairs of the State and they
could not but be treated as holding civil, posts under the
State. [292 D]
4 (a) The declaration to enforce a contract of personal
service ’can be granted (i) where a government servant is
dismissed from service in contravention of the Art. 311;
(ii) to dismissed workers under the industrial and labour
law, and (iii) where a statutory body has acted in breach of
a mandatory obligation imposed by a statute. [292 G]
Executive Committee of U.P. State Warehousing Corporation
Limited v. Chandra Kiran Tyagi [1970] 2 S.C.R. 250 and
Executive Committee of Vaish Degree College, ShamIi & Ors.
v. Lakshmi Narain & Ors. [1976] 2 S.C.R. 1006. followed.
284
(b) It is only where the discretion is not exercised by the
lower court in the spirit of the statute or fairly or hon-
estly or according to the rules of reason and justice that
the order passed by the lower court can be reversed by the
superior court. [293 A]
Charles Osenton & Company v. Johnston [1942] A.C. 130,
referred to.
In the instant case, it cannot be said that the discre-
tion has been wrongly exercised in favour of the respond-
ents. [294 C]
(5) In view of the appellants’ application before the
High Court, which was duly endorsed by the Government, that
since the State had constituted the Road Transport Corpo-
ration and transferred the rights and liabilities to it, the
decree, if any, could be passed exclusively against it, the
Corporation cannot contend that no decree should have been
passed against it. [294 D]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
1601--1609of 1968.
Appeals by Special Leave from the Judgments and Orders
dated the 7th February, 1968 and 26th March, 1968 of the
Mysore High Court at Bangalore in Regular Second Appeal No.
627 of 1964 and Regular Second Appeals Nos. 117 to 120 and
881 to 884 of 1967 respectively.
Civil Appeals Nos. 2402--2405/68
Appeals by Special Leave from the Judgment and Decree
dated the 26th March, 1968 of the Mysore High Court in
R.S.A. Nos. 881-884/67.
(Mrs.) Shyamla Pappu and Vineet Kumar for the Appellant
in C..As. 1601--1609/68.
Narayan Nettar for the Appellant in CAs. 2402--2405/68.
.4. H. Rizvi, B.B. Jawakley and K.P. Gupta for Respond-
ent No. 1 in C.A. 1601/68.
A.H. Rizvi, A.M. Mathur, B.B. Jawakley, K.P. Gupta
and S.S. Hussain for Respondent No. 1 in C.As.
1602--1607/68.
(Mrs.) Shyamla Pappu and J. Ramamurthi for Respondents in
C. As. 2402--2405/68.
The Judgment of the Court was delivered by
JASWANT SINGH, J. This batch of appeals by special
leave, the first one out of which is directed against the
judgment and decree dated February 7, 1968, of Somnath Iyer,
J. of the Mysore High Court in R.S.A. No. 627 of 1964, and
the rest whereof are directed against the common judgment
and decree dated March 26, 1968 of M. Santhosh, another
learned Judge of that Court in R.S.A. Nos. 120, 881, 117 to
119 and 882 to 884- of 1967 shah be disposed of by this
judgment as they raised a common question as to the validi-
ty of orders of dismissal from service of persons who are
arrayed as first respondents in all these appeals.
The facts leading to. the appeals are: The first re-
spondent in each of these appeals was working as a conduc-
tor in the Road Transport Department of the erstwhile State
of Hyderabad prior to the
285
coming into force of the States Reorganisation Act, 1956.
On the reorganisation of the States with effect from Novem-
ber 1, 1956, consequent upon the coming into force of the
said Act, the said respondents were allotted to the new
State of Mysore but their employment as conductors was
continued in the Depots which became parts of the Mysore
Government Road Transport Department. As a result of the
disciplinary proceedings taken against them for certain cash
and ticket irregularities alleged to have been committed by
them, they were dismissed from service by the Divisional
Controller of the Mysore Government Road Transport Depart-
ment in December, 1960. The orders of their dismissal from
service were affirmed by the General Manager of the Mysore
Government Road Transport Department. Thereupon they filed
separate suits for declaration that the aforesaid orders of
their dismissal from service passed by the Divisional Con-
troller were illegal, void and inoperative and they contin-
ued to be in service and were entitled to full pay. The
challenge by the said respondents against their orders of
dismissal from service was based on the ground that their
appointments having been made by the Superintendent, Road
Transport Department of the erstwhile State of Hyderabad,
who was the head of that Department, their dismissal from
service could only be by the head of the Mysore Government
Road Transport Department i.e. by the General Manager of
that Department and consequently their dismissal by the
Divisional Controller who was not the head of that Depart-
ment but a subordinate of his was in violation of the right
guaranteed to them under Article 311 (1) of the Constitu-
tion. The contentions of the first respondents regarding
the invalidity of their dismissal due to the contravention
of Article 311 (1 ) of the Constitution having ultimately
prevailed and all the suits filed by them having been de-
creed in their favour, the State of Mysore and the Mysore
Government Road Transport Corporation (hereinafter referred
to as ’the Corporation) have come up in appeal to this
Court.
Appearing in support of the appeals, Mrs. Shayamla
Pappu, counsel for the appellants, has raised the following
contentions:---
1. That as the post of the Superintend-
ent of the Traffic’ Department did not exist
in the new State of Mysore and the Divisional
Controller of the Mysore Government Road
Transport Department was competent to appoint
and dismiss servants of the category to which
the first respondents (plaintiffs) belonged,
the orders of their dismissal from service
could not be held to have been passed in
violation of Article 311 ( 1 ) of the Consti-
tution in view of section 116(2) of the
States Reorganisation Act, 1956.
2. That in any event, as the General
Manager of the Mysore Government Road Trans-
port Department confirmed on appeal the order
of dismissal from service of the first re-
spondents, there was substantial compliance
with the provisions of Article 311 of the
Constitution.
286
3. That the posts held by the first
respondents not being civil posts under the
State, there could be no question of violation
of Article 311(1) of the Constitution.
4. That the discretionary relief of
declaration of continuance in service could
not and should not have been granted on the
facts of the present suits.
5. That in view of the fact that the
first respondents were dismissed from service
before the establishment of the Corporation
and they did not choose to become its employ-
ees by exercising the option given to them to
serve under it, no decree could be passed
against the Corporation.
The principal and pivotal question that arises for our
consideration in those appeals is whether the impugned
orders of dismissal from service were passed by the compe-
tent authority ? The answer to this question depends on the
answer to the questions as to who could be considered to be
the appointing authority in case of the first respondents
and whether they were dismissed from service by that author-
ity or by an authority subordinate to it.
For a proper decision of this question, it is necessary to
advert to sections 115(7) and 116 of the States Reorganisa-
tion Act, 1956, Article 311 (1 ) of the Constitution as also
to contention No. 4 raised by the CorpOration in the State-
ment of Case filed by it before this Court and the admission
made by the appellants in answer to the interrogatories
served on them by the first respondent under Order 11
Rule 2 of the Code of Civil Procedure which are in these
terms :--
"Section 115(7).---"Nothing in this section
shall be deemed to affect after the appoint-
ed day the operation of the provisions of
Chapter I of Part XIV of the Constitution in
relation to the determination of the condi-
tions of service of persons serving in
connection with the affairs of the Union or
any State:
Provided that the conditions of
service applicable immediately before the
appointed day to the case of any person
referred to in sub-section ( 1 ) or sub-sec-
tion ( 2 ) shall not be varied to his disad-
vantage except with the previous approval of
the Central Government.
Section 116.--Provision as to continu-
ance of officers in the same posts. (i) Every
person who immediately before the appointed
day is holding or discharging
duties of any post or office in connection
with the affairs of the Union or of an exist-
ing state in any area which on that day falls
within another existing State or a new State
or a Union territory shall, except where by
virtue or a consequence of the provisions of
this Act such post or office ceases to
exist on that day continue to hold the Same
post or office in the other existing State or
new State or
287
Union territory in which such area is included
on that day; and shall be deemed as from that
day to have been duly appointed to such post
or office by the Government of,or other appro-
priate authority in such State, or by the
Central Government or other appropriate au-
thority in such Union territory as the case
may be.
(2) Nothing in this section shall be
deemed to prevent a competent authority after
the appointed day, from passing in relation to
any such person any order affecting his con-
tinuance in such post or office."
Article 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 post under the Union or a State
shall be dismissed or removed by an authority
subordinate to that by which he was
appointed."
Contention No. 4.--"The High Court
failed to see that the post of Superintendent
was abolished and was not in existence and
that, therefore, an authority of equal rank
would be an authority competent to appoint and
dismiss the employees."
Admission.--"On 1-11-1956, the General
Manager of the Mysore Government Road Trans-
port Department was the head of the Mysore
Government Road Transport Department and he
was subordinate to none except the Government
of Mysore.
The post of Divisional Controller is
subordinate in rank to that of the General
Manager."
A bare perusal of sub-section (7) of section 115 of the
States Reorganisation Act, 1956, reproduced above, makes it
clear that nothing contained in that section could, after
the appointed day, i.e., November 1, 1956, affect the
operation of the provisions of Chapter 1 of Part XIV of the
Constitution which includes Article 311 thereof in relation
to the determination of the conditions of service of persons
serving in connection with the affairs of the Union or any
State and the conditions of service applicable immediately
before the appointed day to any person who is allotted to
another State could not be varied to his prejudice except
with the previous approval of the Central Government.
Reference in this connection may be made to two decisions
of this Court in M.B. Shukla & Ors. v. State of Gujarat &
Ors.(1) and N. Raghavendra Rao v. Deputy Commissioner, South
Kanara, Mangalore.(2) In the latter case, it was held by
this Court that the effect of sub-section (7) of section
115 of the States Reorganisation Act is to preserve the
power of the State to make rules under Article 309 of the
Constitution but the proviso
(1) [1970] 3 S.C.R. 515. (2) [1964] 7 S.C.R. 549.
288
imposes a limitation on the exercise of that power, the
limitation being that the State cannot vary the conditions
of service applicable immediately before November 1, 1956,
to the disadvantage of persons mentioned in sub-sections (1)
and (2) of section 115 of the Act. In the view of the
Court, the broad purpose underlying the proviso to section
115(7) of the Act was to ensure that the conditions of
service of the aforesaid persons shall not be changed except
with the prior approval of the Central Government i.e.
before embarking on varying the conditions of service, the
State Governments should obtain the concurrence of the
Central Government. Now as pointed out by the Judicial
Committee of the Privy Council in North West Frontier Prov-
ince v. Suraj Narain Anand(1) and by this Court in Pradyat
Kumar Bose v. The Hon’ble the Chief Justice of Calcutta High
Court(2) and State of Madhya Pradesh & Ors. v. Shardul
Singh(3), the expression ’conditions of service’ is an
expression of wide import and the dismissal from service is
a matter which falls within the conditions of service of
public servants. It is also well settled that it is not
possible by means of any legislative provision or rule to
take away the guarantee provided by Article 311 (1) of the
Constitution which lays down that no public servant shall be
dismissed by an authority subordinate to that by which he
was appointed and if any such legislative provision or rule
lays down otherwise, it will clearly be ultra vires. (See
Rangachari v. Secretary of State(4)], North West Frontier
Province v. Suraj Narain Anand (supra) and The State of
Uttar Pradesh & Ors. v. Babu Ram Upadhya(5). It follows,
therefore, that the protections including the constitutional
protection enshrined in Article 311 (1)of the Constitution
enjoyed by persons holding civil posts under the State like
the first respondents prior to the coming into force of the
States Reorganisation Act, 1956 could not, after the
appointed day i.e. November 1, 1956, be taken away, whittled
down or impaired by any legislative enactment or rule.
Sub-section (2) of section 116 of the States Reorganisa-
tion Act, 1956 which is the sheet anchor of the first con-
tention raised on behalf of the appellants but on which no
reliance was rightly placed on their behalf either in the
court of the first instance or in the trial court is of no
assistance to the appellants. As observed by the learned
Chief Justice while speaking for the Constitution Bench of
this Court in M/s. Gammon India Ltd. & Ors. v. Union of
India & Ors. (6), every clause of a statute is to be con-
strued with reference to the context and other provisions of
the Act to make a consistent and harmonious meaning of the
statute relating to the subject matter. The interpretation
of the words has to be by looking at the context, the collo-
cation of the words and the object Of, the words relating to
the matters. The words are not to be viewed
(1)75 I.A. 343= A.I.R. 1949 P.C./12. (2) [1955] 2 S.C.R.
1331,
(3)[1970] 3 S.C.R. 302. (4) 64 I.A. 40=A.I.R. 1937 P.C. 27,
(5) [1961] 2 S.C.R. 679. (6) [1974] 1 S.C.C. 596.
289
detached from the context of the statute. The words are to
be viewed in relation to the whole context. The expression
’competent authority’ occurring in sub-section (2) of sec-
tion 116 of the Act cannot, therefore, be considered in
isolation apart from the rest of the provisions of the Act.
It has to be read in conjunction with, construed and under-
stood as having the same meaning as the expression ’appro-
priate authority’ contemplated by sub-section (1) of that
secnon which in turn according to Article 311 (1) of the
Constitution means the appointing authority or an authority
equivalent to or coordinate in rank with the appointing
authority. The Constitution being the transcendental
law, the legislature by enacting section 115(7) of the
States Reorganisation Act, 1956 took care to see that the
constitutional guarantee enshrined in Article 311 (1) of the
Constitution which was available to the civil servants
before the States Reorganisation Act, 1956 was not de-
stroyed or wiped away on their allotment to a new State.
That the construction placed by us on the expression ’compe-
tent authority’ is in consonance with the meaning and import
of the word ’subordinate’ occurring in Article 311 (1) of
the Constitution is apparent from a catena of decisions.
In N. Somasundaram v. State of Madras(1) where the
petitioner was appointed as Deputy Jailor by the Inspector
General of Prisons but the order of his dismissal from
service was made by the Superintendent of the Jail, it was
observed:
"The competence of the authority to
order removal or dismissal will have to be
determined with reference to the requirements
of Article 311 (1 ) of the Constitution; and
one of the requirements is that the authority
that orders the dismissal or removal should
not be one subordinate in rank to that by
which the civil servant in question was ap-
pointed. The principle would appear to be that
it is the factum of the appointment of the
civil servant who claims the guarantee, that
determines the scope of the guarantee con-
ferred by Article 311 ( 1 ) ."
In Sobhagmal v. State(2) where the applicant was in-
formed in March, 1948 by the Revenue Secretary of the former
State of Jaipur that he had been appointed as Inspector in
the Customs and Excise Department and he was removed from
service after departmental enquiry by the Commissioner,
Customs and Excise, of the State of Rajasthan in July, 1952
and the order of his removal was confirmed on appeal by the
Government of Rajasthan, Wanchoo, C.J. whilo holding that
the order of removal could not be sustained said :--
"What Article 311 ( 1 ) provides is that
the authority dismissing should not be subor-
dinate in rank to that by
(1) A.I.R. 1956 Mad. 419.
(2) A.I.R. 1954 Raj. 207.
20--1458SCI/76
290
which the appointment was made. The intention
seems to be that the authority dismissing
should be co-ordinate in rank to the authority
appointing, and not that. in the absence
of direct subordination any authority could
dismiss even though the authority appointing
might be a higher authority in rank. The
dismissing authority should be at least coor-
dinate in rank with the appointing authority
and should not be subordinate in rank. Thus
if a person is appointed by a Head of one
department, and he is transferred to another
department, he can only be dismissed or re-
moved by the Head of the other department."
In Gurmukh Singh v. Union of India(1) where the peti-
tioner was appointed as an Assistant Sub-Inspector of Police
in the Delhi State Police Force by the Deputy Inspector
General of Police who was at the relevant time, the head
of the Delhi Police and the post of Deputy inspector Gener-
al afterwards ceased to exist and the two senior-most
officers in the Police Force at the relevant period
were the Inspector General and the Senior Superin-
tendent of Police and the petitioner was dismissed by the
order of the Senior Superintendent of Police who had been
invested with the powers of Deputy Inspector General, Fal-
shaw, C.J. accepting. the contention of the petitioner that
his dismissal contravened Article 311 since the Superintend-
ent of Police even where he is designated as Senior Superin-
tendent is subordinate to the inspector General of Police
observed:
"The word ’subordinate’ in Art. 311 (1)
of the Constitution means subordinate in rank
and not with reference to the functions exer-
cised. Consequently, when no officer of equal
rank to the appointing officer is available
then the order of dismissal or removal will
have to be passed by an officer of superior
rank. In no circumstances can such an order
be passed by an officer of lesser rank. Any
rule of statute which permits such an action,
must be held to be ultra vires as infringing
the provisions of Article 311 (1) of the
Constitution."
In Mahadev Prasad Roy v.S.N. Chatterjee & Ors.(2) where
the petitioner was appointed in 1928 as lino operator in the
Government Press by the Superintendent of the Press and the
Government order was passed on June 20, 1952 delegating the
power of appointment and dismissal to the Deputy Superin-
tendent who initiated proceedings against the petitioner on
a charge of theft and passed an order dismissing the peti-
tioner from service on September 16, 1953, Ramaswami, J. (as
he then was) accepting the contention of the petitioner.
that he could be dismissed only by the Superintendent of the
Government Press or by any higher authority and the order
passed by the Deputy Superintendent was invalid and inopera-
tive observed:
(1) Aau.I.R. 1963 Punjab 370. (2) A.I.R. 1954 Patna 285,
291
"The word ’subordinate’ in Art. 311 ( 1
) must be properly construed to mean subordi-
nation in rank and not subordination of func-
tion; otherwise, the protection referred to
in Art. 311 would be illusory."
Similar view was expressed by a Full Bench of the High
Court of Jammu & Kashmir in State of J & K and Anr. v. Ray
Mohammad & Ors. U). In The State of U.P. & Ors. v. Ram
Naresh Lal(2), this Court held that the power can be
conferred on an officer other than the appointing authority
to dismiss a Government servant provided he is not subordi-
nate in rank to the appointing officer or authority.
In the instant cases, the first respondents were undeni-
ably appointed by the Superintendent of the Traffic Depart-
ment of the erstwhile State of Hyderabad who was the head of
the Road Transport Department of that State. On the coming
into force of the States Reorganisation Act, 1956 on
November 1, 1956, they were to be deemed by virtue of sub-
section (1) of section 116 of the States Reorganisation
Act to have been appointed with effect from that date to the
posts held by them on that date by the appropriate authority
in the new State of Mysore which could not in the context
mean an authority other than the one equivalent to or coor-
dinate in rank with the aforesaid authority in the erstwhile
State of Hyderabad. The authority equivalent to or coordi-
nate in rank with the aforesaid authority on the relevant
date being the General Manager of the Mysore Government Road
Transport Department according to the appellant’s own admis-
sion as contained in answer to the aforesaid interrogatories
served on them by the first respondents, he alone could be
considered to be the ’competent authority’ in terms of sub-
section (2) of section 116 of the States Reorganisation
Act, 1956. The fact that there was no post of Superintend-
ent of the Traffic in the Mysore Government Road Transport
Department in the State of Mysore is of no consequence.
Such being the position, the first respondents could not
have been dismissed from service by an authority lower or
subordinate in rank to the General Manager of the Transport
Department as it would tantamount to deprivation of the
guarantee enshrined in Article 311 of the Constitution read
with section 115(7) of the States Reorganisation Act, 1956.
The first contention urged on behalf of the appellants which
runs counter not only to contention No. 4 raised by the
Corporation in its Statement of Case before this Court and
the admission made by it in answer to the aforesaid inter-
rogatories but also to section 115(7) and section 116 of the
States Reorganisation Act, 1956 is, therefore, rejected.
The second contention urged on behalf of the appellants
that as the General Manager of the Mysore Government Road
Transport Department confirmed on appeal the orders of
dismissal of the first respondents that should be considered
as substantial compliance with the provisions of Article
311(1) of the Constitution is, in our judg-
(1) (1971) J & K.L.R. 558. (2) [1970] 3 S.C.C. 173.
292
ment, devoid of substance. The original order of dismissal
of the first respondents being without jurisdiction and as
such void and inoperative having been passed in contraven-
tion of the provisions of Article 311 ( 1 ) of the Consti-
tution, the order passed on appeal by the General Manager
could not cure the initial defect. In similar circum-
stances, the appellate order passed by the Director General
of Prisons was not considered by the Madras High Court in N.
Somasundaram’s case (supra) to remedy the invalidity of the
original order passed by the Superintendent of Jails. To
the same effect is the decision of the Nagpur High Court in
Provincial Government, Centrat Provinces and Berar v. Sham-
shut Hussain Siraj Hussain.(1)
Again in Suraj Narain Anand v. The North-West Frontier
Province(2), it was held by the Federal Court that the
rejection of appeal by a higher authority against dismissal
is not equivalent to a dismissal by that authority itself,
so as to satisfy the provisions of subsection (2) of section
240 of the Government India Act, 1935.
There is also no force in the third contention of coun-
sel for the appellants that the posts held by the first
respondents not being civil posts under the State, there
could be no question of violation of Article 311 (1) of the
Constitution. The argument seems to overlook that both at
the time of coming into force of the States Reorganisation
Act, 1956 and at the time of the passing of the impugned
orders, the first respondents were holding civil posts in
connection with the affairs of the State and they could not
but be treated as holding civil posts under the State.
The fourth contention raised by counsel for the appel-
lant that the discretionary relief of declaration could not
and should not have been granted by the lower courts on the
facts of the present suits is also devoid of merit. In
Executive Committee of U.P. State Warehousing Corporation
Limited v. Chandra Kiran Tyagi(3) and Executive Com-mittee
of Vaish Degree College, Shamli & Ors. v. Lakshmi Narain &
Ors. (4) it was clearly held by this Court that declaration
to enforce a contract of personal service can be granted in
the following three cases :--
(i) appropriate cases of public servants
who have been dismissed from service in con-
travention of Art. 311;
(ii) dismissed workers under industrial and
labour law; and
(iii) when a statutory body has acted in
breach of a mandatory obligation imposed by
a statute
This takes us to second limb of the fourth contention
raised on behalf of the appellants. While it is true that
the relief of declaration is discretionary, it is well
settled that it is only if the dis-
(1) A.I.R. 1949 Nagpur 118. (2) [1941] F.C.R. 37.
(3) [1970] 2 S.C.R. 250. (4) [1976] 2 S.C.R. 1006.
293
cretion is not exercised by the lower court; in the spirit
of the statute or fairly or honestly or according to the
rules of reason and justice, that the order passed by the
lower court can be reversed by the superior court. Refer-
ence in this connection may usefully be made to a decision
of the Privy Council in Charles Osenton & Company v. John-
ston(1) where the legal position was succinctly
stated as follows :--
"There remains the question whether,
assuming that in the circumstance of this case
Tucker J. had jurisdiction to make the order
of reference his conclusion must stand on the
ground that it was reached in the exercise of
his discretion and that the exercise of such
discretion should not be interfered with on
appeal. So the respondent contends, while the
appellants urge that, even if the discre-
tion to make the order existed, it was wrongly
exercised in view of the gravity of the
charges made against them, of the impossibili-
ty of appeal from an official referee’s
finding of fact, and in view of the practica-
bility of the case being tried before a Judge
without a jury. The law as to the reversal by
a court of appeal of an order made by the
judge below in the exercise of this discretion
is well established and any difficulty that
arises is due only to the application of
well-settled principles in an individual case.
The appellate tribunal is not at liberty
merely to substitute its own exercise of
discretion for the discretion already
exercised by the judge. In other words,
appellate authorities ought not to reverse the
order merely because they would themselves
have exercised the original discretion, had it
attached to them, in a different way. But if
the appellate tribunal reaches the clear
conclusion that there has been a wrongful
exercise of discretion in that no weight, or
no sufficient weight, has been given to rele-
vant considerations such as those urged before
us by the appellant. then the reversal of the
order on appeal may be justified. This matter
was elaborately discussed in the decision of
this House in Evans v. Bartlam (1937) A.C.
473, where the proposition was stated by my
noble and learned friend, Lord Wright, as
follows: "It is clear that the Court of
Appeal should not interfere with the discre-
tion of a judge acting within his jurisdiction
unless the court is clearly satisfied that he
was wrong. But the court is not entitled
simply to say that if the judge had jurisdic-
tion and had all the facts before him, the
Court of Appeal cannot review his order unless
he is shown to have applied a wrong principle.
The Court must if necessary examine anew the
relevant facts and circumstances in order to
exercise a discretion by way of review which
may reverse or vary the order. Otherwise in
interlocutory matters, the judge might be
regarded as independent of supervision. Yet
an interlocutory order of the judge may
(1) [1942] A.C. 130.
294
often be of decisive importance on the final
issue of the case, and one which requires a
careful examination by the Court of Appeal.
Thus in Gardner v. Jay (1885) 29 Ch. D. 50,
Bowen L.J. in discussing the discretion of the
judge as regards mode of trial says: "That
discretion, like other judicial discretions
must be exercised according to common sense
and according to justice, and if there is a
miscarriage in the exercise of it, it will be
reviewed."
Bearing in mind the well settled principles regarding inter-
ference with the discretion and taking into consideration
all the facts and circumstances of the present cases, we are
unable to see how the discretion has been wrongly exercised
in favour of the first respondents. The fourth contention
urged on behalf of the appellants is, therefore, overruled.
We are also not impressed with the last submission made
on behalf of the appellants that in view of the fact that
the impugned orders of dismissal from service were passed
before the establishment of the Corporation, no decree could
be passed against it. The Corporation having itself made
an application on September 7, 1964 before the trial Court
endorsed by the Government Pleader requesting therein that
since the State of Mysore had constituted a Road Trans-
port Corporation and had transferred its rights and liabili-
ties to the Corporation, the decree, if any, be passed
exclusively against it, it cannot now turn round and say
that no decree should have been passed against it.
All the contentions raised on behalf of the appel-
lants having failed, the appeals cannot succeed. They are
accordingly dismissed but in the circumstances of the case
without any order as to costs.
P.B.R. Appeal dis-
missed.
21--1458SCI/76
295