JUDGMENT A. N. Varma, J. -These two second appeals are being disposed of by a common judgment as the question which falls for determination in the two appeals is identical. The second appeals are directed against concurrent decrees passed by the courts below by which two suits filed by Babban Singh and Safrullah (the respondent No. 3 in each of the two appeals) tor a declaration that their removal from the Railway Protection Force as Head Rakshaks was null and void, being violative of Article 311 of the Constitution of India, were decreed. 2. The facts found by the two courts below are that both the aforesaid plaintiffs were appointed initially as Rakshaks by the Assistant Security Officer, Eastern Railway, Dinapur. Subsequently, they were both promoted to the rank of Head Rakshaks. At the relevant time, these plaintiffs were posted as a Head Rakshaks at Mughalsarai. 3. While these plaintiffs were on duty in the Down Proceeding Yard at Mughalsarai, some theft of bales of cloths was said to have been committed in a Railway wagon. Both the plaintiffs were charge-sheeted by the Assistant Security Officer for negligence of duty which resulted in the aforesaid theft. In pursuance of the said charge-sheet, an inquiry was conducted. Subsequently, the Security Officer, Eastern Railway, Mughalsarai issued a notice to both the plaintiffs to show cause why the penalty of removal be not imposed upon them. The plaintiffs submitted a reply which did not seem to satisfy the security officer, with the result that orders of removal were passed against each of the two plaintiffs. The plaintiffs filed appeals against these orders which were rejected by the Chief Security Officer, Eastern Railway, Calcutta. Thereupon, the plaintiffs filed the two suits which have given rise to these appeals. 4. In the suit, it was asserted that the Chief Security Officer, as the Head of the Railway Protection Force alone had the right to remove the plaintiffs from service, and that the orders of removal passed by the Security Officer were thus null and void being in contravention of Article 311 of the Constitution of India. 5. The defence of the respondents in both the suits was that the Security Officer was fully empowered to remove the plaintiffs from service in view of the powers conferred upon him under Schedule II of the Railway Protection Force Rules 1959. 5. The defence of the respondents in both the suits was that the Security Officer was fully empowered to remove the plaintiffs from service in view of the powers conferred upon him under Schedule II of the Railway Protection Force Rules 1959. It was denied that the plaintiffs could be removed from service only by the Chief Security Officer. Pleas to the effect that the suits were barred by sections 34 and 41 of the Specific Relief Act, and that the suits were undervalued and the court fee paid thereon was insufficient, were also raised. 6. On the pleadings of the parties, various issues were framed by the trial court. One of the issues framed was : Whether the order of removal passed by the Assistant Security Officer, was illegal, invalid and unconstitutional?" 7. Relying on section 6 of the Railway Protection Force Act, 1957, which provides that the appointment of the members of the Railway Protection Force shall vest in the Chief Security Officer, the trial court concluded that the Chief Security Officer would be deemed to be the appointing authority in the case of the plaintiffs, and that inasmuch as the orders of removal had been passed by the Security Officer, who was lower in rank, the same were null and void, being of Article 311 of the Constitution of India. After giving a finding on this issue, the trial court did not consider it necessary to go into the other issues. The result was that the suits of the plaintiffs were decreed for the declaration sought by them. 8. Aggrieved by the decrees passed by the trial court, the respondents Nos. 1 and 2 filed appeals which were both dismissed by the lower appellate court. The lower appellate court endorsed the opinion of the trial court as to the effect of section 6 of the aforesaid Act and held that the Chief Security Officer alone could legally remove the plaintiff from service. The appeals were consequently dismissed. Thereafter, these second appeals. 9. These appeals first came up for hearing on 2-8-1979. In the course of arguments it transpired that an important issue arising in the two suits had not been determined by the courts below and that upon an answer to that issue alone, the suits could be disposed of properly. The appeals were consequently dismissed. Thereafter, these second appeals. 9. These appeals first came up for hearing on 2-8-1979. In the course of arguments it transpired that an important issue arising in the two suits had not been determined by the courts below and that upon an answer to that issue alone, the suits could be disposed of properly. Consequently, I passed an order on 2-8-1979 remitting the following issue to the lower appellate court : "Which authority had appointed the plaintiffs and if the authority which appointed the plaintiffs as Head Rakshaks was other than the Chief Security Officer, what was the rank of that authority?" 10. The above issue was remitted because it was felt that the courts below had not made any endeavour to find out as to which authority had in point of fact appointed the plaintiffs as Rakshaks or Head Rakshaks, presumably because the courts below disposed of the suits as a matter of pure construction of section 6 of the aforesaid Act and held that inasmuch as the Chief Security Officer would be deemed to have been the appointing authority of the plaintiffs, the orders of removal were per se void and ineffective in law. 11. After the remission of the issue of this court, the lower appellate court took fresh evidence in the two suits and returned a finding to the effect that the two plaintiffs were in point of fact appointed as Rakshaks, and subsequently, promoted as the Head Rakshaks by the Assistant Security Officer. However, after recording a clear finding that both the plaintiffs were in point of fact appointed initially as Rakshaks and subsequently promoted as Head Rakshaks by the Assistant Security Officer, in the last paragraph of its order the lower appellate court again observed that even though the plaintiffs were appointed as Head Rakshaks by the Assistant Security Officer, in view of Section 6 of the aforesaid Act, the plaintiffs would be deemed to have been appointed as Head Rakshaks by the Chief Security Officer. 12. It may be noted that only the defendants-respondents led evidence on the issue remitted to the lower appellate court and that the plaintiffs did not choose to adduce any evidence whatsoever in rebuttal of the evidence led by the defendants-respondents. 12. It may be noted that only the defendants-respondents led evidence on the issue remitted to the lower appellate court and that the plaintiffs did not choose to adduce any evidence whatsoever in rebuttal of the evidence led by the defendants-respondents. After the issue was returned by the lower appellate court in the manner stated above, the plaintiffs did not choose to file any objection against the said finding even though leave for that purpose had been expressly granted to them under the order of this court dated 2-8-1979. 13. The appeals were again taken up for hearing on 21-7-1981 and I heard both the learned counsel for the parties at some length on the question involved in the two appeals. The only issue which was debated at the bar was whether it was only the Chief Security Officer, who could pass orders of removal of the plaintiffs and whether on the facts found by the courts below, Article 311 of the Constitution was violated on the ground that the orders of removal were passed by the Security Officer and not by the Chief Security Officer? 14. In my opinion, on the finding of fact returned by the lower appellate court that the plaintiffs were appointed Head Rakshaks by the Assistant Security Officer, the question of violation of Article 311 of the Constitution of India, cannot possibly arise. The aid of Article 311 of the Constitution was sought by the plaintiffs solely on the ground that their appointing authority was the Chief Security Officer and he being superior in rank to the Security Officer or Assistant Security Officer, they could not be removed by the Security Officer. This contention of the plaintiffs was not based on the assertion that in point of fact the plaintiffs were appointed by the Chief Security Officer. It was founded only on the supposition that under the provisions of the aforesaid Act Chief Security Officer would be deemed in law to be their appointing authority. For this contention, the plaintiffs placed reliance on section 6 of the aforesaid Act and Rule 3 of the Railway Protection Force Rules framed under the said Act. 15. It was founded only on the supposition that under the provisions of the aforesaid Act Chief Security Officer would be deemed in law to be their appointing authority. For this contention, the plaintiffs placed reliance on section 6 of the aforesaid Act and Rule 3 of the Railway Protection Force Rules framed under the said Act. 15. I am, however, clearly of the view that if in point of fact, the plaintiffs were appointed by the Assistant Security Officer, it was immaterial for the application of Article 311 of the Constitution of India whether the power to appoint the plaintiffs as Head Rakshaks legally vested under Section 6 in the Chief Security Officer. Article 311 of the Constitution of India is concerned with the factual position and not with the question as to who had the competence to appoint the Government servant, who is sought to be removed from service. 16. In Second Appeal No. 1855 of 1979 - Brij Narain Singh v. Union of India, (decided on 16-1-1979) : (1979 Lab I C NOC 151 (All)), by a learned Single Judge of this Court (Deoki Nandan, J.) had occasion to consider an identical question and relying on a decision of the Calcutta High Court reported in AIR 1959 Cal 103 - Rasha Ranjan Haidar v. I. G. of Police, W. B. observed thus :- "Mr. Lalji Sinha contended that even so the provisions of Article 311 (1) of the Constitution cannot be said to have been contravened in the case of the plaintiff-appellant. He was appointed by the Security Officer and has been removed by the Security Officer. All that Article 311 (1) is concerned with is that the punishing authority must not be subordinate to the appointing authority. The competence of the appointing authority is not relevant consideration in applying the Rule laid down by Article 311 and he cited a number of decisions in support of the submission. All that Article 311 (1) is concerned with is that the punishing authority must not be subordinate to the appointing authority. The competence of the appointing authority is not relevant consideration in applying the Rule laid down by Article 311 and he cited a number of decisions in support of the submission. It is not necessary to refer to them inasmuch as the appellate Bench of the Calcutta High Court in the case of Rasha Ranjan Haidar v. Inspector General of Police, W. B., (supra) relied upon by the learned counsel for the plaintiff-appellant himself, it has clearly been laid down that a Government servant can obtain relief only if he can show that he has been dismissed by an authority subordinate to that by which he had been appointed, but not if he merely shows that he has been dismissed by an authority subordinate to that by which he ought to have been appointed. Moreover, I am bound by the decision of the Division Bench of this court dated 25th January, 1977 in the case of Sher Bahadur Singh (reported in 1977 Lab I C 1562), wherein the same argument having been raised, was considered and the writ petition of Sher Bahadur Singh was dismissed." I am in respectful agreement with the view expressed by brother Deoki Nandan. Following the said decision, I hold that the orders of removal passed against the plaintiff have not been passed in violation of Article 311 (1) of the Constitution of India for the simple reason that the plaintiffs were actually appointed by the Assistant Security Officer and they have been removed by the Security Officer, who is admittedly an officer superior in rank to an Assistant Security Officer. 17. The only ground on which the courts below found against the defendants-appellants on the application of Article 311 of the Constitution of India was that the plaintiffs would, in view of section 6 of the aforesaid Act read with Rule 3 be deemed to have been appointed by the Chief Security Officer. In my opinion, the courts below were not right in concluding from section 6 of the aforesaid Act and Rule 3 of the Rules framed thereunder that the plaintiffs would be deemed in law to have been appointed by the Chief Security Officer. In my opinion, the courts below were not right in concluding from section 6 of the aforesaid Act and Rule 3 of the Rules framed thereunder that the plaintiffs would be deemed in law to have been appointed by the Chief Security Officer. The first observation which I wish to make in this behalf is that where the factual position is known as to the authority which actually appointed the concerned employee, reference to section 6 of the Act is unnecessary. It is another matter that in the absence of any material or evidence on the record the court might presume that in the normal course of things the employee must have been appointed by the officer who had the competence to appoint that employee. Where, however, as here, the authority which actually appointed the employee is known, I see no warrant for speculating or for drawing presumptions as to which authority had the competence to appoint. 18. In order to the point, it will be necessary to have the relevant statutory provisions extracted here. Section 6 of the Railway Protection Force Act reads as follows :- "6. Appointment of Members of the Force. The appointment of members of the Force shall vest with the Chief Security Officers, who shall exercise that power in accordance with the Rules made under this Act: Provided that the power of appointment under this section may also be exercised by such other superior officer as the Chief Security Officer concerned may by order specify in this behalf." 19. Rule 3 of the Railway Protection Force Rules 1959, to which reference has been made above reads thus :- "Appointment to the Force - The Superior Officers and members of the Railway Protection Force, who, at the commencement of the Act, were holding the posts specified in Column 1 of the Table below are hereby appointed to the post specified in the correspondent entry in Column 2 of the said Table in the Railway Protection Force constituted under section 3 of the Act. Existing post in the Railway Protection Force (1) Corresponding Post under Railway Protection Force (2) Inspector General Inspector General Chief Security Officer Chief Security Officer Security Officer Security Officer Assistant Security officer Assistant Security Officer Sub Inspector Sub Inspector Subedar Assistant Sub Inspector Havildar Head Rakshak Naik/Seal Checker Senior Rakshak Sainik Rakshak and each will be the immediate superior in rank to the one mentioned next below." 20. This very statutory provision came up for consideration before this Court in a matter in which the controversy was substantially the same as the one in hand (See Sridhar Dubey v. Union of India, (1975 Lab I C 1353) (All) in which M. P. Mehrotra J., held, after examining the true import of section 6 and Rule 3 quoted above that the mere fact that under R. 3, the appointments made prior to the coming into force of the aforesaid Act are deemed to be appointments under the said Act to the corresponding posts mentioned therein, would not justify a further presumption that the members of the force would be deemed in law to have been appointed by an authority other than the one which actually appointed him. Dealing specifically with the case of Rakshaks, the learned Judge observed that R. 3 merely laid down that the persons who were already appointed to the Railway Protection Force at the commencement of the Act, shall hold corresponding posts under the new Act, but that did not mean that the person who was appointed by the Assistant Security Officer initially before the Act came into force, shall be deemed to have been appointed by the Chief Security Officer after the Act came into force. 21. I find myself in complete agreement with the view expressed by M. P. Mehrotra, J. in the case of Shridhar Dubey v. Union of India (supra). I do not agree with the submission of the learned counsel for the respondents that Rule 3 has the effect of altering the factual position existing in the present case. As mentioned above, the factual position as regards the authority who appointed the plaintiffs being available, the enquiry into which authority had the competence to appoint the plaintiffs became superfluous. 22. The view which I have taken finds full support from the following decisions. 1. As mentioned above, the factual position as regards the authority who appointed the plaintiffs being available, the enquiry into which authority had the competence to appoint the plaintiffs became superfluous. 22. The view which I have taken finds full support from the following decisions. 1. Second Appeal No. 1855 of 1979 Brij Narain Singh v. Union of India (1979 Lab I C NOC 151 (All))(supra) (Judgment of Deoki Nandan J. dated 16-1-1979) 2. Second Appeals Nos. 166 and 167 of 1977 - Union of India v. Ram Asrey Singh (judgment of Gopi Nath, J. dated 13-3-1978) (All). 3. 1975 Lab I C 1353 (All) - Sridhar Dubey v. Union of India. 4. Writ Petn. No. 536 of 1976 - Mushtaq Hussain v. Chief Security Officer decided by Fable M. P. Mehrotra & K. C. Agrawal JJ. on 30-1-1981 (All). 23. In all the aforesaid decisions, the controversy involved was substantially the same. In each of these cases, the submission that under section 6 of the aforesaid Act, Rakshaks or Head Rakshaks would be deemed to have been appointed by the Chief Security Officer, even though factually found to have been appointed by the Assistant Security Officer or Security Officer was expressly repelled. 24. Learned counsel placed reliance on a Single Judge decision of this Court in Union of India v. Nar Bahadur Singh (1972 All L J 640): (1972 Lab I C 945) in which it was held that on an interpretation of section 6 of the aforesaid Act, that in the absence of any delegation made by the Chief Security Officer, a member of the Railway Protection Force will be deemed to have been appointed by the Chief Security Officer, and that consequently an order of removal passed by an officer lower in rank to the Chief Security Officer will be deemed to be unconstitutional. This case was distinguished by M. P. Mehrotra, J. in the case of Sridhar Dubey v. Union of India (1975 Lab IC 1353) (All) (supra) on the ground that in that case, there was no material to show that the employee had been appointed in fact by the Assistant Security Officer. I fully agree with M. P. Mehrotra, J. The above decision cited by the learned counsel for the respondent is clearly distinguishable. In the present case, there is the finding that the plaintiffs were appointed by the Assistant Security Officer. I fully agree with M. P. Mehrotra, J. The above decision cited by the learned counsel for the respondent is clearly distinguishable. In the present case, there is the finding that the plaintiffs were appointed by the Assistant Security Officer. There was no such material or finding in the case of Union of India v. Nar Bahadur Singh (1972 All LJ 640) : (1972 Lab I C 945). 25. For the reasons stated above, I hold that the courts below committed a substantial error of law in decreeing the suit of the plaintiffs on the ground that the orders of removal passed against the plaintiffs were hit by Article 311 of the Constitution of India. 26. Learned counsel for the defendants-appellants also submitted that if the contention of the plaintiffs that in their case the competent appointing authority was the Chief Security Officer is accepted as correct on the finding of fact recorded by the lower appellate court that the plaintiffs were in point of fact appointed by the Assistant Security Officer, the very initial appointment of the plaintiffs-appellants will be deemed to be null and void having been made by an authority which had no power to do so. That being so, learned counsel contended, relying on several authorities that the plaintiffs could not possibly claim the protection of Article 311 of the Constitution which was available only to the persons who were lawfully holding a post under the Government. The submission raised by the learned counsel for the appellants is a serious one and cannot be dismissed out of hand. However, as the defendants are entitled to succeed on the aforesaid ground, it is not necessary to express a concluded opinion on the submission raised by the learned counsel for the defendants-appellants. 27. In the end, I may notice a submission of the learned counsel for the respondents. It has argued that the finding of the lower appellate court that the plaintiffs were appointed in fact by the Assistant Security Officer, is not sustainable by the evidence on record. He was, however, unable to point out any error of law in that finding. Whether the plaintiffs were appointed in fact by the Assistant Security Officer is indisputably a pure question of fact. The finding of the lower appellate court on this issue is fully supported by both oral and documentary evidence on the record. He was, however, unable to point out any error of law in that finding. Whether the plaintiffs were appointed in fact by the Assistant Security Officer is indisputably a pure question of fact. The finding of the lower appellate court on this issue is fully supported by both oral and documentary evidence on the record. I have perused the statement of D.W. 1 as well as the service records of the plaintiffs which were referred to by D.W. 1 in his statement and I find that the conclusion of the lower appellate court on the point is fully justified. 28. In the result both the appeals succeed and are allowed. The judgments and decrees passed by the courts below are set aside. Both the suits filed by the plaintiffs-respondents are hereby dismissed. In the circumstances of the case, however, I direct that the parties shall bear their own costs throughout.