Is an employee's removal invalid under Article 311(1) where the removing authority is subordinate in rank to the appointing authority?

Paragraph 13It is well settled that while determining the authority by which an employee was appointed for the purposes of Article 311(1) of the Constitution, the court is required to ascertain the authority which in fact made the appointment with reference to the order of appointment and the statutory or regulatory framework governing such appointment. Once that authority is identified, the constitutional protection under Article 311(1) has to be examined with reference to the hierarchical position of the authority which subsequently passes the order of dismissal or removal.

Paragraph 24Applying the above discussion to the facts of the present case, the Order dated 04.12.1979 was issued by the Assistant Commandant, 2nd Battalion, RPSF, Gorakhpur, expressly appointing the respondent as a Rakshak with effect from 04.12.1979 upon successful completion of his initial training. The appellants have placed on record that Shri I.J. Singh, the Adjutant, who passed the Order of Removal dated 18.03.1983, was of the same rank as the Assistant Commandant/Assistant Security Officer who had made the appointment. The Trial Court, upon consideration of the pleadings and evidence, recorded a finding that the Adjutant was not lower in rank than the Assistant Commandant. The respondent has not disputed the same and has not placed anything on record to establish that the Adjutant was subordinate in rank to the Assistant Commandant who had appointed the respondent, neither before this Court nor before the Courts below. As discussed hereinabove, the Assistant Commandant/Assistant Security Officer/Adjutant is competent to impose the penalty of removal upon the Rakshaks under the Rules. At this stage, it is relevant to note that the constitutional prohibition contained in Article 311(1) is attracted only where the order of dismissal or removal is passed by an authority subordinate in rank to the authority by which the employee was appointed, whereas, this essential ingredient of Article 311 is absent in the facts of the present case.