It is well understood that the three terms 'dismissal, 'removal' and 'reduction in rank' used in the context of disciplinary proceedings have acquired a special connotation as signifying the three major punishments which can be inflicted upon Government servants under the CCS (CCA) Rules 1965 or under other corresponding service rules in accordance with the procedure prescribed in these rules. The Constitution uses them in that sense. 'Dismissal' and 'removal' amount to a premature termination of the service of a Government servant as a measure of penalty. The distinction between the two lies in that whereas in the case of removal, a person remains eligible for re-appointment under Government, in the case of dismissal, he will not ordinarily be so eligible. Except for that difference, both dismissal and removal cast a stigma on the Government servant and imply that his services have been terminated owing to some misconduct or misbehavior. The term 'reduction in rank' denotes reduction to a lower post or a lower time-scale of pay or to a lower stage in a time-scale. A change of position in the seniority list of a cadre, however, will not amount to reduction in rank.

Whether termination of service of a Government servant in any given circumstance will amount to punishment will depend upon whether under the terms and conditions governing his appointment to a post he had a right to hold the post but for termination of his service. If he has such a right, then the termination of his service will, by itself, be a punishment for it will operate as a forfeiture of his right to hold the post. But if the Government servant has no right to hold the post the termination of his employment or his reversion to a lower post will not deprive him of any right and will not, therefore, by itself be a punishment.

If the Government servant is a temporary on and has no right to hold the post, dismissal or removal will amount to punishment if such a Government servant has been visited with certain evil consequences. In such a case the termination of his services will not be under the Temporary Service Rules but after observing the procedure laid down in the CCS (CCA) Rules, 1965 or under other corresponding Service Rules.

Where a person is appointed substantively to a post in Government service he normally acquires a right to hold the post until, under the rules he attains the age of superannuation or is retired in public interest after he has attained the age of 50 or 55 years as the case may be, under F.R. 56 (j). He cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or of other disqualification and appropriate proceedings are taken under the relevant service rules read with Article 311. Termination of services of such a Government servant on grounds of misconduct, negligence, inefficiency or other disqualification will amount to a punishment which can be imposed only in accordance with the procedure laid down in the relevant rules as this will operate as a forfeiture of his right to hold the post by bringing about a premature end of his employment.

A temporary Government employee is subject to the CCS (TS) Rules, 1965 Rule 5 (1) of which provides that the services of a temporary Government servant can be terminated at any time by a month's notice in writing given either by the Government servant to the competent authority or by the competent authority to the Government servant. A person in temporary service thus has no substantive right to hold the post and his service can be terminated in accordance with Rule 5 (1) of CCS (TS) Rules, 1965 by giving him the prescribed notice. A termination of service brought about by the exercise of a contractual right does not amount to a dismissal or removal to attract the application of Article 311. Even if misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influenced the Government to take action under the terms of contract of employment or under specific service rules, nevertheless, if a right exists under the contract or under the rules, to terminate the services, the motive operating on the mind of the Government is wholly irrelevant. In Dhingra's case (AIR 1958 SC 36) the Supreme Court held that:

"Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal as has been held by this Court in Satish Chandra Anand vs. Union of India. Likewise, the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311 (2) as has also been held by this Court in Shyam Lal vs. State of U.P. In either of the two above mentioned cases the termination of the service did not carry with it the penal consequences of loss of pay or allowances under F.R. 52. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influence the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh vs. Union of India, wholly irrelevant. In short, if the termination is founded on the right flowing from contract or the service Rules, then, prima facie, the termination is not a punishment and carried with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirement of Article 311 must be complied with. As already stated, if the servant has got a right to continue in the post, unless the contract of employment or the rule provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his further career"

An appointment to a temporary post for a specified period however, gives the Government servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be terminated during that period unless he is, by way of punishment, dismissed or removed from service.

The services of a person who having been appointed temporarily to a post has been in continuous service for more than three years and in respect of whom a certificate of quasi-permanency under Rule 3 of the CCS (Temporary Service) Rules, 1965 has been issued, can be terminated only in the circumstances and in the manner in which the employment of a Government servant in permanent service can be terminated or when the appointing authority certifies that a reduction has occurred in the number of posts available for Government servants not in permanent services. Such a Government servant acquires a right to the post and, therefore the termination of his employment, otherwise than in accordance with Rule 7 of the CCS (TS) Rules, will deprive him of his right to that post which he has acquired under the rules and will prima-facie be a punishment and regarded as a dismissal or removal from A (6) service so as to attract the provisions of Article 311.

A probationer does not have a substantive right to hold the post. He is appointed on trial. His appointment can be terminated during or at the end of the probation, if he is found unsuitable, by notice or otherwise as provided in the terms of his appointment. If a Government servant had held another post under government before his appointment to the post in question on probation, he will revert to the post on which he held a lien.

In Dhingra's case (AIR 1958 SC 36) the Supreme Court has enunciated the position in regard to probationers thus: -

1. Appointment to a post on probation gives to the person so appointed no right to the post and his services may be terminated without taking recourse to procedure laid down in the relevant rules for dismissing or removing a public servant from service.

2. The termination of employment of a person holding a post on probation without any inquiry whatsoever cannot be said to deprive him of any right to the post and is, therefore, no punishment.

3. If instead of terminating the services of such a person without any inquiry, the employer chooses to hold an inquiry into his alleged misconduct, or inefficiency or for some similar reason and if the probationer is discharged on any one of those grounds without a proper inquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to dismissal or removal from service within the meaning of Article 311 (2) of the Constitution and will, therefore, be liable to be struck down.

4. If the employer simply terminates the services of a probationer, without holding an inquiry and without even giving him a chance of showing cause against his removal from service, the probationary civil servant will have no cause of action even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was holding on probation on account of his misconduct or inefficiency, or some such cause.

The appointment of a person to officiate in a post is usually made when the substantive incumbent of the post is on leave or has been appointed or transferred temporarily to another post, pending the return of the substantive incumbent. Officiating appointment may also be made in an existing or newly created permanent or temporary post. The reversion of such an officiating Government servant to the post on which he holds a lien or to the post held by him before will not attract Article 311 as he had no right to the post and his reversion cannot be treated as a punishment.

This aspect was clarified by the Supreme Court in the case of an Inspector of Police who was holding the post of Deputy Superintendent in an officiating capacity but was subsequently reverted. It appeared that there were certain allegations of corruption against the officer and an inquiry was held. The order was a simple one, which did not give any reason or refer to any misconduct. The order was challenged on the ground that the reversion was really meant as a penalty. The Supreme Court rejected the contention and held that his reversion was not bad in law, as motive was not relevant. (State of Maharashtra vs. Abraham, Civil Appeal No. 69 of 1961).

In Dhingra's case which actually dealt with a case of reversion to a lower rank, the Supreme Court had, on this matter, held as follows: -

"A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank, to his substantive lower rank will not ordinarily be a punishment"

Clause (1) of Article 311 clearly limits the application of the provisions of the Article to members of Civil Services of the Union or of All India Services or Civil Services of the States or holders of civil posts under the Union or a State. It does not cover members of the Defense Services or those holding posts connected with the defense including civilian personnel working on posts connected with defence and paid from Defence Estimates. [It may, however, be noted that civil Government servants in defence services have been brought under the purview of the Central Civil Services (Classification, Control and Appeal) Rules, 1965]. Employees of public undertaking or of independent corporate bodies are not holders of civil posts and are not covered by Article 311 except Government servants who are on deputation to such undertakings or corporate bodies.

Clause (1) of Article 311 provides that no person who is a member of a civil service of the Union or an All India Service or holds a civil post under the Union shall be dismissed or removed by an authority subordinate to that by which he was appointed. The appointing authority cannot delegate his power of dismissal and removal to a subordinate authority.

If in a particular case a Government servant was appointed by a higher authority than the one which was competent to make appointment to the post or a Government servant was appointed by a particular authority but subsequently the power to make appointment to that post or grade was delegated to lower authority and if such a Government servant is dismissed or removed from service by the lower authority, which though no doubt, competent under the rules to order the appointment and also to order dismissal is lower in rank than the authority which had in fact ordered his appointment, such an order of dismissal or removal would contravene the provisions of Article 311 (1) of the Constitution. Often time it does happen that an authority higher in rank than the competent authority will make an appointment in any individual case. However, if such an appointment has been ordered by the higher authority in respect of the persons so appointed, it is only that higher authority that can exercise the power of ordering his removal or dismissal from service.

The underlying idea is that a Government servant to whom Article 311 applies is entitled to the judgement of the authority by whom he had been appointed or of an authority superior to that authority and that he should not be dismissed or removed by a lower authority in whose judgement he may not have the same faith. The provisions of this article will apply to dismissal or removal, whether in a disciplinary case or on account of conviction of a Government servant in a court of law3 or on any other ground. In all cases of removal or dismissal the order should be signed by the authority, which had appointed him.

In the case of appointments made on the basis of selection, that authority which makes the actual appointment and not that which made authority or a head of the department may have approved a selection list or direct a subordinate authority to appoint a particular person. In either case the higher authority does not become the appointing authority. But if a Government servant is appointed by one authority in a temporary capacity and is confirmed by a higher authority, the competent authority to order dismissal or removal will be the higher authority, which confirmed the Government servant and not the authority which actually appointed him.

If an order of dismissal/removal is passed by an authority subordinate to the appointing authority, any subsequent confirmation of such order by the competent authority will not validate the defective order. In such a case the competent disciplinary authority should start fresh proceedings if the circumstances of the case so warrant.