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Dass Mal Vs. the Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeals Nos. 171 and 256 of 1953
Judge
Reported inAIR1956P& H42
ActsConstitution of India - Articles 310, 311 and 311(1); Specific Relief Act, 1877 - Sections 42; Government of India Act, 1935 - Sections 240 and 240(3); Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantDass Mal
RespondentThe Union of India (Uoi)
Appellant Advocate Shamair Chand, Adv.
Respondent Advocate D.K. Mahajan, Adv.
Cases ReferredShyam Lal v. State of Uttar Pradesh
Excerpt:
.....and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - o's were to be released--all those not recommended as suitable for retention in the post war army of the following categories--(i) subedar -28 years pensionable service. he states that he unsuccessfully petitioned the government which is shown by ex. , observed at page 707: the court ought to be satisfied that the plain-tiff has an interest in the property in respect of whichthe declaration is claimed which is a valid and subsisting interest'.in the present case the plaintiff is seeking..........every person who is a member of a defence service or of a civil-service of the union or of an all-india service or holds any post connected with defence or any civil post under the union holds office during the pleasure of the president.in article 311(1) a member of a defence service or a person who holds any post connected with defence has been omitted, and in my view this omission has only one meaning that the protection afforded under article 311(1) is not available to the appellant dass mal. and the constitution is not retrospective.11. the learned district judge has applied section 16, indian army act which provides that the prescribed authority may, in conformity with any rules prescribed in this behalf, discharge from service any person subject to this act. it is not disputed.....
Judgment:

Kapur, J.

1. These are two appeals (R. S. A. Nos. 171 and 256 of 1953), one brought by the plaintiff Dass Mal, and the other by the Union of India against an appellate decree of the Additional District Judge of Ferozepore dated 8-1-1953 by which the decree of the trial Court was modified to this extent that instead of the relief that the plaintiff is entitled to remain in service up to the age of 60 years, 55 years was substituted.

2. The plaintiff was born on 16-3-1894. On 4-1-1918, he joined as a civilian clerk in the R. I. A. S. C. During the 2nd World War the plaintiff became a full-fledged member of the Defence Forces and was given the rank of Subedar. By an order of the Director of Supplies and Transport No. 42, dated 5-10-1941 it was provided that non-combatant clerks, who were granted Viceroys Commissions, would hold lien on their substantive appointments until such time as they are absorbed in the peace cadre of V. C. O's and in the case of those who are not eventually absorbed but are reappointed to their substantive appointments, the service as V. C. O. will count as qualifying for pension in their substantive appointments; see Ex. P. 5.

Under an order issued on the 20-7-1946 discharges of V. C. O's of R. I. A. S. C. (SUP) serving on a regular engagement were provided for; see Ex. P. 15. At No. 2 V, C. O's, who were 'militarized under-AI (I) 380/41' became due for compulsory discharge as under--

'Sub Majors (on status) On attaining 55 yearsSubedars and Jemadars of age.'

on terms & status.

By the third clause, V. C. O's who had already completed their age, service or tenure limits were to be discharged by OC's of units direct from the units concerned, and such an Officer was competent authority to sanction the discharge. Reference there is Hindu to the Table annexed to Indian Army Act Rule 13 (b). In this order made under Rule 13 a V. C. O. could be discharged by a Commanding Officer under the following circumstances--

'On completion of the period of service or tenure specified in the Regulations for his rank or appointment, or on reaching the age limit, whichever is earlier, unless retained on the active list for a further specified period with the sanction of the Commander-in-Chief in India, or on becoming eligible for release under the Regulations'.

3. By Ex. P. 3 dated 30-5-1947 the Adjutant General in India made an order for disposal of V. C. O's (Supply) and the following categories of V. C. O's were to be released--

'All those NOT recommended as suitable for retention in the post war army of the following categories--

(i) Subedar -- 28 years pensionable service.

(ii) Jamadars -- 24 years pensionable service.'

On 7-6-1947 the services of the plaintiff were ordered to be terminated as he was not suitable for retention in the post-war army see Ex. P. 4. Exhibit P. 2 shows that on 27-2-1948 the plaintiff was discharged. A document Ex. P. 10, dated 25-12-1948 has been placed on the record which shows that the retirement of ministerial Government servants governed by Article 459 (a) (i) of C. S. R. was raised to sixty years with certain provisos.

4. The plaintiff brought the present suit claiming that he was entitled to serve up to the age of 60 years and that his order of discharge was contrary to the Constitution Act of 1935, Section 240(3), as, (1) he had been discharged by an authority not legally competent to do so, and (2) he was not given a reasonable opportunity of showing cause against the order proposed to be taken against him, and reliance was chiefly placed on Ex. P. 10 to which I have already referred. He states that he unsuccessfully petitioned the Government which is shown by Ex. P. 19, dated 8-10-1949.

The suit of the plaintiff was for declaration to the effect that his discharge was void and he was entitled to remain in service upto the age of 60 years.

5. The Union pleaded that the plaintiff had been validly discharged from service, that he had completed his period of service and that the suit is framed did not lie.

6. The learned District Judge has held that the provisions of Section 240(3), Government of India Act were not applicable to the case of the plaintiff, that he was subject to the Indian Army Act, vide Section 2(1) of the Act and as Section 16, Indian Army Act would be applicable he was not discharged by a person authorised to discharge him and reliance was placed on Ex. P. 13 which is a copy of Rule 13 framed under the Indian Army Act.

The learned District Judge was of the opinion that the only person who could discharge the plaintiff was a person holding the rank of a Lieutenant-General but he also was of the opinion that the plaintiff could only serve up to the age of 55/50 years, vide A. 1 (1) 380/41, para. 2 Clause (d) Ex. P. 8, which is as follows:

'In the case of those who elect either combatant terms or status, retirement will be compulsory on completing the age of 55 years, but those who wish to do so, may be permitted to retire on attaining the age of 50 years'.

The plaintiff has come up in appeal to this Court claiming that he is entitled to remain in service up to the age ot 60 years and the Union has come up in appeal praying that the suit of the plaintiff be dismissed.

7. When this suit was brought, i. e. on 17-2-1951 the plaintiff was more than 55 years old. He was as a matter of tact 56 years 11 months old, and as the suit was one tor declaration only, it was incompetent and a declaration, even it it could be given, would be useless. Whatever other remedy the plaintiff may or may not have had, in my opinion he was nut entitled to get a declaration as to a legal character because at the time he brought the suit he did not have that character and in order to succeed he must have a valid and subsisting interest.

In 'Bhikari Behara v. Sitomoni Devi', AIR 1924 Pat 706 (AJ, Dawson Miller C. J., observed at page 707:

'The Court ought to be satisfied that the plain-tiff has an interest in the property in respect of whichthe declaration is claimed which is a valid and subsisting interest'.

In the present case the plaintiff is seeking a declaration in regard, to an office in which at the time he brought the suit he had no valid or subsisting interest, an another Patna case -- 'Ram Sunder v. Ram Narain', AIR 1918 Pat 79 (B), another Division Bench interpreting Section 42, Specific Relief Act was of the opinion that the section is available to obtain a declaration for a present legal character or a legal right.

It has no application to. a case where the plaintiff seeks a declaration as to a right which has ceased to exist. Similarly in -- 'Latifan Main v. Mt. Moorti Janana', AIR 1919 Cal 82 (C), it was held that a wife cannot ask the Court to make a declaration under Section 42, Specific Relief Act as to. her marriage with the defendant after her divorce, inasmuch as there is no legal character in having been a wife and then divorced.

In an Oudh case -- 'Abdul Ahad v. Ashfaq Ali' AIR 1933 Oudh 423 (2) (D), a declaration as to the correctness of an electoral roll after the election was held not to be available on the ground that it will not affect the legal position of the parties to the election.

8. In -- 'R. T. Rangachari v. Secy. of State'. AIR 1937 PC 27 (E), although it was found that the removal from service was by a person not authorised and therefore illegal because ot Section 96B, Government of India Act of 1919, yet no relief was granted because the appellant there could not be restored to his office on account of his state of health: see page 30.

9. The appellant Dass Mal has also raised the question which has been decided in favour of the Union that under the Constitution Act of 1942 the protection provided by Section 240(3) of that Act is available to the plaintiff which is controverted by the Union. The plaintiff was a civilian clerk and mere-tore he was a person who came within Section 238 lead with Section 235 which is in Part X of that Act dealing with the services of the Crown in India, Chapter I of which relates to Defence Services.

Section 235 provides for control of Secretary of State with respect to conditions of service and Section 238 makes provisions as to civilian personnel. It provides:

'The provisions of the three last preceding sections shall apply in relation to persons who, not being members of His Majesty's forces, hold, or have held, posts in India connected with the equipment or administration of those forces or otherwise con-nested with defence, as they apply in relation topersons who are, or have been, members at thosefarces.'

As a result of this section therefore the rules made in regard to Defence Services become applicable to civilian personnel. Civil Services of the Crown are dealt with in Chapter II and Section 240 occurs in this Chapter, The protection as to dismissal including removal or reduction in rank is not contained in Chapter I of Part X, and it has been held by Viscount Simon L. C. that the section being in two different Parts is by itself a relevant tact; see -- 'Nokes v. Doncaster Amalgamated Collieries, Ltd.' 1940 AC 1014 at page 1021 (F), and this was applied to a company case in' -- 'Bhagwati v. New Bank of India, Ltd.', AIR 1950 EP 111 at p. 117 (FB) (G).

Section 240(3) applies to civil services of India and a combined reading of Chapters I and II of Part X shows that civil personnel attached to Defence Forces is not civil services in India and in my opinion the learned District Judge has rightly held that Section 240(3) of the Constitution Act doe's not apply to the facts of the present case.

10. When the suit was brought the Government of India Act had been repealed and the Constitution of India had come into force. Under the Constitution for purpose of interpretation the General Clauses Act applies, see Article 367 of the Constitution. The corresponding provision in regard to services of the Union and the States is contained in Articles 310 and 311 ot the Constitution, Under the former every person who is a member of a defence service or of a civil-service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union holds office during the pleasure of the President.

In Article 311(1) a member of a defence service or a person who holds any post connected with defence has been omitted, and in my view this omission has only one meaning that the protection afforded under Article 311(1) is not available to the appellant Dass Mal. And the Constitution is not retrospective.

11. The learned District Judge has applied Section 16, Indian Army Act which provides that the prescribed authority may, in conformity with any rules prescribed in this behalf, discharge from service any person subject to this Act. It is not disputed that the plaintiff was subject to the Indian Army Act at the time when he was discharged. The question is -- was he removed from service by the prescribed authority? In my opinion he was.

According to Ex. P. 3 which deals with disposal of V. C. O's (Supply), all persons not recommended for retention in the post-war army were to be released; sec para. 1 (c) or this document, and he was released by the Officer Commanding. He had already put in 28 years' pensionable service and therefore even under Rule 13. 1 (i) (a) an officer Commanding was the competent authority to discharge the appellant on completion of his period of service or tenure or on reaching the age limit, whichever is earlier.

I find that a document Ex. P. 9 has been filed which is dated 8-3-1947 and deals with release and reversion of V. C, Os and in para. 2 of this document it is stated:

'GHO (AG's Branch) have now ruled that prewar civilian clerks (now VCOs) who have been granted extensions to serve up to the age of 55 years can (sic) no longer required'.

But even if the plaintiff were to rely on para, 2 of the instructions dated 20-7-1946 (Ex. P. 15) and as entitled to remain in service up to the age of 55 years, he has no right to bring a suit to enforce this contract because conditions of service are no part of the contract which is justiciable or can be enforced by Courts. It was so decided in -- Venkata Rao v. Secy, of State', AIR 1937 PC 31 (H), where it was held that rules made do not import a special kind of employment with an added contractual term that the rules are to be observed and a dismissal in utter disregard of the procedure will not, therefore, give a right of action for wrongful dismissal.

I am therefore of the opinion that the learned Judge took an erroneous view of the case in giving a declaration to the plaintiff that he is entitled to remain in service up to the age of 55. It a person holds office at the pleasure of the President and the protection of Article 311 of the Constitution or Section 240(3) of the Constitution Act of 1935 is not available, then it is not for the Courts to put limitation on the exercise of the pleasure by the President or the Crown as the case may be.

12. It Section 16 Indian Army Act was applicable to the plaintiff, as he submits it was, and the discharge was in accordance with the rules made and by the authority prescribed, as it was in this case, then the plaintiff has no case of grievance at all.

13. But the plaintiff submits that even if he was properly discharged from the service as a combatant, or what he calls 'malitarized officer', on his discharge from the army, he was entitled to go back as a civilian into the civil personnel, because of the lien which he held on his substantive, appointment, until such time as he was absorbed into the peace cadre of V. C. Os: see Ex. P. 5 which contains the rules made on 5-10-1941, The law in regard to this argument is really the same as the one in regard to discharge and if a member of the civil personnel holds office during the pleasure of the President, he cannot bring a suit for his being retained in service.

No precedent was quoted and no principle was relied upon in support of the submission that if a man has a lien and he has not been given am opportunity to take advantage of it, he has at right to enforce it through a Court of law. On the other hand --'AIR 1937 PC 31 (H)', seems to be a case which supports the contrary opinion.

14. Even if lien be available, the suit is incompetent as the plaintiff is more than 60 years old at the time of this appeal, and the rule in --'AIR 1937 PC 27 (E)', applies.

15. Even if the action of the Government amounts to compulsory retirement of the plaintiff, the matter does not fan under Art, 311 of the Constitution and would not fall under Section 240(3) of the Constitution Act of 1935 because a compulsory retirement has no stigma or implication of misbehaviour or incapacity. The rule laid down in --'Shyam Lal v. State of Uttar Pradesh', AIR 1954 SC 369 (I) would be applicable to this case.

16. I would therefore hold that --

(1) to the plaintiff relief of declaration is not available as at the time he brought the suit he had no present legal character or subsisting right;

(2) neither Section 240(3) -of the Constitution Act of 1935 nor Article 311 read with Article 310 of the Constitution of India is available to the plaintiff;

(3) when the plaintiff was discharged he was subject to the Indian Army Act and he was discharged from combatant service by prescribed authority as required by Rule 13. I (i)(a) made under the Indian Army Act;

(4) all army personnel, whether belonging to the defence services or coming within the phrase 'connected with defence services' hold office at the pleasure of the Crown and now at the pleasure of the President, and a suit cannot be brought for infringement of any rules as was held by the Privy Council in -- 'AIR 1937 PC 31 (H)', and

(5) on discharge from the army no lien was available to the plaintiff, but even if it was, no suit can be brought to enforce that lien, nor can it be decreed after he has attained the age of 60 years.

I would therefore allow the appeal of the Unionand dismiss the appeal of the plaintiff. As a resultthe suit of the plaintiff will be dismissed, but theparties will bear their own costs throughout.


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