P.V. Rajamannar, C.J.
1. This is an appeal against the Judgment of Ramaswami Gounder, J., in A.S. No. 435 of 1951. That appeal was from the decree and judgment of the learned Subordinate Judge of South Malabar, at Palghat in O.S. No. 32 of 1949 on his file. The suit was filed by one R.V. Lakshmana Ayyar against the Province of Madras in the following circumstances:
2. Lakshmana Ayyar, the plaintiff, entered Government service as a clerk in 1916. He became in due course a Tahsildar and was confirmed as such with effect from 1st December, 1944. He was acting as Huzur Sheristadar between April, 1943, and June, 1945. On 4th June, 1945, he was appointed as Additional First class. Magistrate, Malabar. He took charge as such on 16th June, 1945, and continued in that office till 17th October, 1946, when he took leave. There was a charge of corruption against him and the Special Officer for Departmental Enquiries held an enquiry and sent a report finding him guilty. After consideration of the report, the Collector passed an order on 28th November, 1947, dismissing him from service. The plaintiff appealed to the Board of Revenue against the said order of the Collector, but the Board confirmed the order. He then sought for a revision of the said order from the Local Government, but his revision petition was rejected. Thereafter, he filed the suit out of which this appeal arises for a declaration that the order of dismissal from service passed by the Collector of Malabar, on 28th November, 1947, was void and inoperative and that he was not thereby deprived of his right to get his pay and pension and that he still continued in service. Though the order of dismissal was impugned by him on several grounds, the only ground which we are concerned with in this appeal is that the order was in contravention of the provisions of Section 240(2) of the Government of India Act, 1935. The plaintiff alleged that he was appointed Additional First Class Magistrate by the Governor of Madras as the Head of the State and that he was the only authority who could. dismiss him, and therefore, the Collector of Malabar, who was an officer lower in rank, was not competent to dismiss him.
3. The plea of the Government as regards this point was that the plaintiff was a permanent Tahsildar and he was only invested with the powers of a magistrate of the first class and he was not appointed to any new civil post by the Governor and as the Collector was the authority who appointed him as Tahsildar, he was competent to dismiss him and Section 240(2) of the Government of India Act, 1935, was not contravened.
4. The learned Subordinate Judge held that the plaintiff was not appointed to a new civil post within the meaning of Section 240 of the Government of India Act,, 1935, by the Governor, and that he was only invested with first class magisterial powers when he was appointed Additional First Class Magistrate and, therefore,, the dismissal of the plaintiff by the Collector was a dismissal by a competent authority. The learned Judge also found against the plaintiff on the other pleas and dismissed the suit with costs.
5. Against the said decree and judgment of the learned Subordinate Judge, the plaintiff filed an appeal to this Court (A.S. No. 435 of 951). Pending the appeal, the plaintiff died and his legal representatives were brought on record as appellants 2 to 4. The appeal was heard by Ramaswami Gounder, J., who held that the plaintiff was appointed to a new civil post, viz., the post of Additional First Class Magistrate, by the Governor, and as the appointment was by the Governor, it was beyond the competency of the Collector to dismiss the plaintiff from service. On this finding the appeal was allowed and a decree was passed in favour of the plaintiff's legal representatives declaring that the deceased plaintiff was not deprived of his right to get his pay and pension form the date of his dismissal 28th November 1947, till the date of his death, viz., 26th June, 1953.November, 1947, till the date of his death viz., 26 the June, 1953.
6. The Present appeal is against that decision of Ramaswami Gounder, J., preferred by the State of Madras.
7. The material order directly relating to the plaintiff is G.O.Ms. No. 1764, dated 4th June, 1945, and it runs as follows:
His Excellency the Governor of Madras hereby appoints Sri R.V. Lakshmana Ayyar as Additional First Class Magistrate for the district of Malabar in the place of T.V. Ravunni Nair.
The following notification will be published in the Fort St. George Gazette:
Under Section 12 of the Code of Criminal Procedure, 1898 (V of 1898), Sri R.V. Lakshmana Ayyar in the district of Malabar is appointed to be a Magistrate of the First Class and under Section 37 of the said Code, he is invested with al the powers specified in the fourth schedule to the said Code as powers with which a Magistrate of the first Class may be invested by the Provincial Government Except:
(1) The power to require security for good behaviour under section 108 or 110 of the said Code:
(2) The power to try offences summarily under Section 260 of the said Code; and
(3) The power to hear appeals from convictions by Magistrate of the second and third classes under Section 407 of the said Code.
8. The decision of this appeal depends upon the interpretation of this order.
9. To understand the scope of this Order, it is necessary to go back in time to G.O.Ms. No. 1852, dated 22nd May, 1942 (Exhibit B-1). The material part of that order is as follows:
In order that Revenue Divisional Officers may be in a position to devote more attention to revenue work and to the uplift and welfare of villagers generally, the Government have decided to appoint additional officers of the standing of Tahsildars as Additional First Class Magistrate who will relive the Revenue Divisional Officers of the greater part of their ordinary court work. The Government consider it desirable that the scheme should be tried first in certain selected districts in those revenue divisions where the work is heaviest...Tahsildars who are on the Deputy Collectors List will be appointed as Additional First Class Magistrates. If no such Tahsildar is available from the list, those who are likely to be included in the list should be appointed...An I.C.S. Officer may also be appointed as Additional First Class Magistrate while he is undergoing training or when there is no division to which he can be posted.
The additional post created under this scheme will be only on a temporary basis and will continue till 31sty March, 1944, for the present.
10. On the 27th December, 1945, the Government passed an order (G.O.Ms. 4584, Home) in and by which they made the following rules regarding the posts of Additional First Class Magistrates:
(1) The posts of Additional First Class Magistrate in each district shall be deemed to be temporary additions to the cadre of Tahsildars in category 1 of the Madras Revenue Subordinate Service (Executive Branch).
(2) The general and special rules applicable to holders of posts borne on the cadre of the said category shall apply to the holders of the said temporary posts.
(3) The pay of the said Additional First Class Magistrate shall be Rs. 250 per mensem.
11. Reference may also be made to certain other orders relation to the plaintiff. The actual posting of the plaintiff by the collector was made on the 6th June, 1945, thus:
Sri R.V. Lakshmana Ayyar, Huzur Sheristadar, who has been invested with the powers of a Magistrate of the First Class in G.O.Ms. No. 1764, Home, dated 4th June, 1945, to Additional First Class Magistrate, Palghat, vice sri T.V. Ravunni Nair, granted leave preparatory to retirement.
12. On the 15th April, 1947, the Collector made the following posting:
Sri R.V. Lakshmana Ayyar, lately Additional First Class Magistrate, Palghat, on return from leave, is posted to act as Assistant Treasury Officer, Calicut, vice Sri M. Balakrishna Nair, granted leave.
13. This posting, however, was cancelled by a subsequent order of the Collector, dated 26th April, 1947. It is sufficient to refer to one other fact, viz., that the report of the Special Officer for Departmental Enquiries on the enquiry made into the conduct of the plaintiff was forwarded to the Government and the Government in their turn forwarded the report and the records of the enquiry to the Collector and District Magistrate of Malabar on the ground that he was the authority competent to impose the penalty recommended by the Special Officer, viz., dismissal from service. The Collector then called upon the plaintiff to make any representation that he might desire to make with special reference to the report of the Special Officer for Departmental Enquiries, Madras, against the issue of an order dismissing him from service. The plaintiff made his representation in writing and eventually, on 28th November, 1947, after considering the plaintiff's representation, the Collector passed an order dismissing him from service (Exhibit A-1).
14. On the 9th December, 1948, the plaintiff issued through his vakil a notice of suit in which he impugned the order inter alia on the ground that as the Collector was not the appointing authority for the Additional First Class Magistrate, he did not have the power of dismissal under Section 240(2) of the Government of India Act. The Government passed the following order explaining the correct position in fact and in law as regards his contention:
Sri R.V. Lakshmana Ayyar was a permanent Tahsildar appointed by the Collector of Malabar. Under a notification issued with G.O. No. 1764, Home, dated 4th June, 1945, the Provincial Government appointed him, under Section 12 of the Criminal Procedure Code, as an Additional First Class Magistrate in the District of Malabar. The word 'appoint' in that section has reference only to the conferment of magisterial powers and not to the appointment to any civil service or to any civil post under the Crown in India within the meaning of Section 240 of the Government of India Act, 1935. Merely because magisterial powers were conferred on him by the Government,' it will not be open to Sri R.V. Lakshmana Ayyar to claim that for purposes of Section 240 of the Government of India Act, he must be regarded as one appointed by the Provincial Government and that his dismissal by the Collector is ultra vires and illegal. His dismissal by the Collector is, therefore, in order and does not require regularisation by the Government.
15. Section 240(1) and Section 240(2) of the Government of India Act, 1935, so far as they are material run thus:
240(1) Except as expressly provided by this Act, every person who is a member of a Civil Service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure.
240(2)...No other such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.
16. The question is whether the plaintiff in this case can be said to have held a civil post by virtue of an appointment thereto by an authority higher than a Collector. It is not disputed that the post of a permanent Tahsildar which the plaintiff was holding at the time he was appointed Additional First Class Magistrate was a post to which he was appointed by the Collector. When the plaintiff, while he was acting as Huzur Sheristadar, whose office is of the same grade as that of a Tahsildar, was appointed as Additional First Class Magistrate, was he appointed to a new civil post or a new civil service by the Governor? If he was, then, certainly the Collector had no power to dismiss him from service.
17. Section 12 of the Code of Criminal Procedure provides for the appointment by the Provincial Government of as many persons as it thinks fit, besides the District Magistrate, to be Magistrates of the first, second or third class in any district outside the presidency-towns and confers on the Provincial Government or the District Magistrate, subject to the control of the Provincial Government, the power to define from time to time the local areas within which such persons may exercise all or any of the powers with which they may respectively be invested under the Code. Section 36 says:
All District Magistrates, Sub-Divisional Magistrates and Magistrates of the first, second and third classes, have the powers hereinafter respectively conferred upon them and specified in the third schedule. Such powers are called their 'ordinary powers'.
18. Under Section 37, in addition to these ordinary powers, any Sub-Divisional Magistrate or any Magistrate of the first, second or third class may be invested with additional powers. The Provincial Government may confer powers under the Code on persons specially by name or in virtue of their office or on classes of officials generally by their official titles.
19. The learned Judge, Ramaswami Gounder, J., was evidently much impressed with the order purporting to appoint the plaintiff as an Additional First Class Magistrate. He apparently was inclined to construe the order as an order appointing him to the post of an Additional First Class Magistrate. We do not agree with him that this is the effect of the order. The order does not in terms say that the plaintiff was appointed to any particular post. It is true that Section 12 of the Code of Criminal Procedure contemplates the Provincial Government appointing certain persons to be Magistrates of the first, second or third class. This does not involve, however, that there are at any time a definite number of Magistrates of each class in any district. A Magistrate of the first class is only a person invested with the ordinary powers of a Magistrate of the first class as mentioned in Schedule III to the Code of Criminal Procedure, and likewise Magistrates of the second and third class, who are only persons invested with the ordinary powers of a Magistrate of the second and third class respectively enumerated in the said schedule. Now, it is well known that officers of the Government holding other substantive posts have also been invested with powers of Magistrates of the first, second or third class. In all such cases, there will be an appointment by the Government of the concerned person as a Magistrate of the first, second or third class. For instance, in this State, in taluks where there are no Stationary Sub-Magistrates, second class powers have been generally conferred on Tahsildars. In such cases, there will be an appointment, either by name or ex-officio or designated by class, as Magistrate of the second class. Such an appointment does not imply that the person so appointed as a Magistrate is appointed to a civil post or he becomes a member of a civil service different from that which he was holding or included in prior to the appointment. It may be noticed that in G.O. No. 1852, dated 22nd May, 1942, which initiated the proposal for the appointment of Additional First Class Magistrates, there is a provision that an I.C.S. officer may also be appointed as an Additional First Class Magistrate in certain contingencies. Surely, it cannot be said that because of such an appointment he becomes a member of a new civil service or begins to hold a new civil post to which he has been appointed by the Provincial Government in supersession of his original appointment by the Secretary of State for India in Council. A Sub-Registrar of Assurances, who is often invested with third class magisterial powers is not appointed to a new post, i.e., to the post of a third class Magistrate. All that it means is that he can exercise the powers which are specified in Schedule III to the Code of Criminal Procedure.
20. Taking the instant case, we know that the plaintiff, at the time he was appointed Additional First Class Magistrate, was a permanent Tahsildar acting as Huzur Sheristadar. He did not cease to be a Tahsildar because of this appointment. Indeed, some time later, on the 15th April, 1947, the plaintiff was actually posted to act as Assistant Treasury Officer, Calicut. The power to appoint the plaintiff to that office was undoubtedly vested in the Collector. The result of accepting the contention of the plaintiff will lead to the most anomalous situation, viz., that when the plaintiff was Tahsildar and Huzur Sheristadar, he could be dismissed by the Collector and when later on he was appointed to a higher office than the office of an Additional First Class Magistrate, viz., as Assistant Treasury Officer, Calicut, he could have been dismissed by the Collector, but when he was exercising the powers of an Additional First Class Magistrate, he could be dismissed only by the Government. G.O. No. 4584, dated 27th December, 1945, makes the position abundantly clear because it says that the posts of Additional First Class Magistrate in each district shall be deemed to be temporary additions to the cadre of Tahsildars in Category I of the Madras Revenue Subordinate Service (Executive Branch). It cannot be disputed that all appointments relating to that cadre are appointments; which can be made by the Collector. The plaintiff as Additional First Class Magistrate was, therefore, in that cadre, and he continued to be a person who must be deemed to have been appointed by the Collector and who, therefore, could be dismissed by the Collector. In our opinion, the construction placed on the order appointing the plaintiff as Additional First Class Magistrate, by the Government in their memorandum forwarded to the Board of Revenue after a consideration of the suit notice of the plaintiff, read with the notification under Section 12 of the Code of Criminal Procedure, is right. It follows that the decision of the learned Subordinate Judge to the same effect was right.
21. In the result, we allow the appeal and set aside the judgment of the learned Judge and restore the judgment of the learned Subordinate Judge with costs here and before Ramaswami Gounder, J.