JUDGMENT
J.N. Sarma, J.
1. This writ application has been filed by an employee of the Chief Judicial Magistrate, Morigaon challenging the order of dismissal dated 7.12.1998 passed by the Respondent No. 3, Chief Judicial Magistrate, Morigaon, Assam dismissing the petitioner from service. The petitioner was dismissed from service by holding an enquiry. Earlier this writ petitioner approached this Court by filing a writ petition being Writ petition (Civil) No. 299/99 and this writ petition came up for disposal before this court and on 8.2.1999 this court dismissed the writ petition on the ground that, there is alternative remedy available to the petitioner against the impugned order. Orders of the Chief Judicial Magistrate are appealable before the District & Sessions Judge, Morigaon and the petitioner should avail the alternative remedy. Accordingly an appeal was filed before the learned District & Sessions Judge, Morigaon under Rule 15 of the Assam Services (Discipline & Appeal) Rules, 1964. That appeal was dismissed by order dated 28.7.1999.
2, The only point which has been argued by Mr. Bhattacharjee, learned Advocate for the petitioner is that the order of dismissal passed by the Chief Judicial Magistrate is without jurisdiction being violative of Article 311 of the Constitution of India. The admitted position in this case is that the petitioner was appointed as Lower Division Assistant in Morigaon Sub-Division by a letter of appointment dated 25.1.1974 and he was posted in the office of the Sub-Divisional Magistrate (Judicial) Morigaon. At that point of time there was no Rule with regard to the appointment of such person. The Rule which was followed is Assam Ministerial Establishment Service Rules, 1967. The appointing authority as defined under that Rule, 1967 save and except to certain posts as mentioned in that Rule was District Judge in the case of appointment of ministerial posts in the District Judge establishment. The District Judge is the head of the District judiciary and he used to exercise that power in terms of that Rule and accordingly the petitioner was also appointed by the District Judge.
3. Subsequent to it in the year 1987 a Rule was framed in exercise of power conferred by proviso to Rule 309 of the Constitution of India and that Rule is known as Assam District and Sessions Judges Establishment (Ministerial Service Rules), 1987 and that Rule came into force with effect from 26th October, 1987. In this Service Rules, it was provided that the Chief Judicial Magistrate shall be the appointing and Disciplinary authority for all the persons under his establishment. The petitioner herein after the establishment of the court of Chief Judicial Magistrate at Morigaon came under the jurisdiction of Chief Judicial Magistrate at Morigaon and it was he who passed the order of promotion of the petitioner from LDA to UDA and thereafter from UDA to Peskier and thereafter in exercise of the powers given under this Rule, he initiated the disciplinary
proceeding and passed the order of dismissal.
4. In order to decide the question raised in this case, it is necessary to look at Article 311(1). Article 311(1) is quoted below :-
“311(1). No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.”
The admitted position in this case is that the Chief Judicial Magistrate is subordinate to the District Judge and the appointing authority of this person was District Judge. So, whether the action of the Chief Judicial Magistrate can be deemed to be valid though he exercised the power under the new Rules which came into force in 1987.
5. In AIR 1964 SC 600 (Moti Ram Deka and ors. v. General Manager, North East Frontier Railway) the Supreme Court in paragraph 27 pointed out as follows :-
“In this connection, it is necessary to emphasise that the rule-making authority contemplated by Article 309 cannot be validly exercised so as to curtail or affect the rights guaranteed to public servants under Article 311(2). Article 311(2) is intended to afford a sense of security to public servants who are substantively appointed to a permanent post and one of the principal benefits which they are entitled to expect is the benefit of pension after rendering public service for the period prescribed by the Rules. It would, we think, not be legitimate to contend that the right to earn a pension to which the servant substantively appointed to a permanent post is entitled can be curtailed by Rules framed under Article 309 so as to make the said right either ineffective or illusory. Once the scope of Article 3121(1) and (2) is duly determined, it must be held that no Rule framed under Article 309 can trespass on the rights guaranteed by Article 311. This proposition is of basic importance and must be borne in mind in dealing with the controversy in the present appeals.”
In the same volume, there is another case at page 449 (Jagadish Mitter v. The Union of India) where the Supreme court considered the provisions under 1935 Act which later on was incorporated in the Constitution holding that an order of dismissal or removal can be challenged on the ground that the mandatory provision of Article 311 have not been complied with.
In AIR 1996 SC 2289 (Jai Jai Ram and Ors. v. U.P. State Road Transport Corporation) the Supreme Court pointed out that under
Article 311 of the Constitution, the competent authority is any other authority so long as it is not subordinate in rank or grade to authority by which the delinquent Government servant was appointed. But, once it is found that the authority who initiated the disciplinary proceeding is not the competent authority meaning thereby that it is subordinate to appointing authority, the disciplinary action taken shall be invalid and illegal. Clause (1) of Article 311 makes it clear that removal or dismissal order of a civil servant can be made by an authority which is not subordinate to the appointing authority who appointed that civil servant. Dismissal by an officer subordinate to the appointing authority will be void. The order of dismissal is not legally acceptable even though that order is affirmed on appeal by the appointing authority or some other superior authority. If any authority is required for this proposition of law, one may have a look at 1949 P.C. That was a case under 1935 Act, AIR 1955 SC 70, AIR 1970 SC 1263 and AIR 1982 SC 1407.
6. In AIR 1979 SC 1912 (Krishna Kumar v. The Divisional Assistant Electrical Engineer, Central Railway and ors.), the Supreme Court pointed out that whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Article 311(1) becomes available to the person holding, a civil post under the Government so that he shall not be removed or dismissed by an authority subordinate to that which appointed him. The subsequent authorization made in favour of respondent 1 with regard to making appointments to the post held by the appellant cannot confer upon respondent 1 the power to remove him. On the date of the appellant’s appointment as a Train Lighting Inspector, respondent 1 had no power to make that appointment, he cannot have, therefore, the power to remove him. This case squarely covered the case of the petitioner. In the case before the Apex Court, subsequently a rule was made and power was given to another authority, but the Supreme Court pointed out that will not be valid. The action was taken by the authority who was subordinate than the authority who appointed the person at that point of time. In that particular case, he was appointed by the Chief Electrical Engineer who was the head of the department at that point of time but he was removed by the Divisional Assistant Electrical Engineer who acquired the power to remove that person by subsequent amendment in the Railway code and that was challenged before the Apex Court and the Apex Court accepted that contention and writ application was allowed which was dismissed by the High Court-The same is the law as laid down in AIR 1982 SC 1407 (Sampuran
Singh v. State of Punjab). There, of course, a sanction to prosecute was given by the Chief Minister and that was challenged on the ground that the sanction was not given by the competent authority, i.e., by the appointing authority. That was rejected by the Supreme Court holding that the Chief Minister concerned is not inferior or subordinate to the Chief Engineer and the Supreme Court pointed out that powers can be exercised by any authority higher than the appointing authority. The only bar under Article 311(1) is that the authority to remove should not be subordinate to that by which he was appointed.
(1997) 11 SCC 400 (State of U.P. and ors v. Bihari L.L. Mishra and ors). This is a case with regard to removal of a Lekhpal. There was a rule with regard to the appointment of a Lekhpal and that is Lekhpal Service Rules, 1958. The Supreme Court pointed out that even before the promulgation of the rule, the position, was that the appointing authority of a Lekhpal was Assistant Collector Incharge of Sub-Division and not Collector. In that particular case, on the date of appointment the Assistant Collector Incharge of Sub-Division was not in office and the appointment was made by the Collector but the removal order was passed by the Assistant Collector Incharge Sub-Division. The contention before the Supreme Court was that the appointing authority being the Collector he cannot be removed by the Assistant Collector. That was turned down by the Supreme Court on the ground that the rule itself provides that the appointment shall be made by the Assistant Collector and that power was exercised by the Collector on behalf of the Assistant Collector because of his absence in the office and the petition filed by the State of U.P. was allowed and the judgment of the High Court was quashed. The Supreme Court pointed out that there is no violation of Article 311(1) of the Constitution. But in this case the situation is absolutely different. As pointed out above by enacting a Rule under Article 309 the benefit granted/available to a person under Article 311 of the Constitution cannot be wiped out. But that is what has been done in the instant case.
7. In that view of the matter, the order of dismissal dated 7.12.1998 (Annexure-X) and the appellate order dated 28.7.99 (Annexure-XII) shall stand quashed. The Registry shall send a copy of this judgment to all the District Judges/CJMs for their future guidance so that such a situation may not arise in future, I have heard Mr. O.K. Bhattacharjee, learned Advocate for the petitioner, Mr. D.P. Chaliha, learned Advocate for Gauhati High Court and Smti Rekha Chakraborty for the Respondent No. 1.