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Makkena Sambayya Vs. Makkena Tirupatayya and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtChennai High Court
Decided On
Case NumberAppeal No. 268 of 1949
Judge
Reported inAIR1952Mad865; (1952)IIMLJ152
ActsMadras Hereditary Village Offices Act, 1895 - Sections 10(6), 13, 21 and 23; Code of Civil Procedure (CPC) , 1908 - Sections 9; Government of India Act, 1935 - Sections 240 and 241(5); Constitution of India - Articles 311 and 375
AppellantMakkena Sambayya
RespondentMakkena Tirupatayya and anr.
Appellant AdvocateM.S. Ramachandra Rao, Adv. for ;V. Subramaniam, Adv.
Respondent AdvocateV. Parthasarathi, ;C.V. Mannadiar, Advs. and ;J. Krishnamurthi, Govt. Pleader
Cases ReferredIndia v. I. M. Lall
Excerpt:
madras hereditary village offices act (iii of 1895), sections 10 and 13--board of revenue final authority for appointment and removal of village officers--no provision for government to interfere--order of government invalid and inoperative--suit for declaration--jurisdiction of civil court to entertain;the first defendant who was a permanent village headman was dismissed for certain improper acts by the revenue divisional officer, who appointed the plaintiff as acting village munsif and later confirmed it. the order of dismissal was confirmed in appeal by the collector and, in second appeal, by the board of revenue. a revision petition made to the government was rejected, but subsequently, on a memorial filed by the first defendant, they reviewed their earlier order and took the view.....1. the appellant before us was the first defendant in the court below, the second defendant being the government of madras represented by the district collector, guntur. the plaintiff brought a suit for a declaration that the order of the revenue divisional officer, guntur, dated 27th july 1947 is illegal, ultra vires, and not binding on him. the learned judge decreed the suit as prayed for and hence this appeal by the first defendant.2. the first defendant was the permanent village munsif of nandigama village in sat-tenapalli taluk, guntur district. on account of irregularities in official, proceedings as well as charges of misappropriation he was dismissed by the revenue divisional officer on 25th july 1944, which dismissal, on appeal to the collector, was confirmed on 31st december.....
Judgment:
1. The appellant before us was the first defendant in the Court below, the second defendant being the Government of Madras represented by the District Collector, Guntur. The plaintiff brought a suit for a declaration that the order of the Revenue Divisional Officer, Guntur, dated 27th July 1947 is illegal, ultra vires, and not binding on him. The learned Judge decreed the suit as prayed for and hence this appeal by the first defendant.

2. The first defendant was the permanent village munsif of Nandigama village in Sat-tenapalli taluk, Guntur district. On account of irregularities in official, proceedings as well as charges of misappropriation he was dismissed by the Revenue Divisional Officer on 25th July 1944, which dismissal, on appeal to the Collector, was confirmed on 31st December 1944. On 15th January 1945, under Ex. A. 5 the Revenue Divisional Officer appointed the plaintiff as acting village munsif which appointment was confirmed on 31st January 1945 under Ex. A. 6. Against the confirmation of the order of dismissal the first defendant preferred a second appeal to the Revenue Board which was also dismissed on 4th May 1945 (Ex. A. 3). There was a further petition to the Government for interference in this matter in revision and on this the order under the signature of the Assistant Secretary to Government was that the law does not provide for interference by the Government in the matter and therefore the petition was rejected on 14th October 1946 (Ex. A. 4). Subsequently, the first defendant memorialised the Honourable Prime Minister, Government of Madras, under Ex. E. 1, and on that, orders were passed (Ex. B. 2) on 16th May 1947 by which the Government came to the following conclusion:

"Last year, the petitioner submitted a petition to the Government requesting reinstatement to the post. The petition was rejected in the Government endorsement read above. The Government have since re-examined the case, on a petition subsequently received from the dismissed headman. They consider that, in view of the fact that the petitioner is young, the punishment is too severe and this is a fit case in which they should exercise clemency and reduce the punishment. They accordingly direct that the petitioner should be restored to duty, the period between the date of his dismissal and the date of his restoration being treated as one of suspension and that he should be warned to behave himself in future. The petitioner is referred to the Board of Revenue for orders on his petition read above."

3. The Board of Revenue to whom the petitioner was referred for orders by the Government, in its turn directed the Collector to enquire into the matter, who referred the petitioner to the Revenue Divisional Officer who on 27th July 1947, passed the following order:

"Sri Makkena Sambiah is hereby restored to office as headman of Nandigama village of Sattenapalle taluk in relief of Sri Makkena Tirupathiah whose appointment ordered in this office R. D. is No. 827 of 1945 dated 31st January 1945 is hereby superseded."

The plaintiff, whose appointment terminated as a result of the reinstatement of the present appellant, has brought the suit for a declaration that the order of the Revenue Divisional Officer was ultra vires, illegal and invalid and that the order by which he was appointed, viz., Ex. A. 6, should remain effective and that the first defendant cannot have any right to the office. The first defendant's contention in the court below was that the Government has complete jurisdiction and power to review the earlier order refusing to interfere and thai according to the provisions of the Madras Hereditary Village Offices Act his restoration is valid and operative. There was a further question raised as to whether the suit was entertainable at all in a civil court. The State of Madras which have been impleaded as the second defendant in the suit supported the first defendant and asserted that they had ample powers to act in the manner they did. As stated already the Subordinate Judge agreed with the contentions urged on behalf of the plaintiff and decreed the suit. The State of Madras though a party respondent to this appeal, actively supports the case put forward on behalf of the appellant and contends that Ex. B. 2 by which the Government held, on a re-examination of the case, that the appellant was entitled to a reduction of punishment find clemency cannot be questioned by the plaintiff. It is further contended that under the provisions of the Government of India Act, 1935, Sections 240 and 241, then in force, the subsequent order, Ex. A. 7, cancelling the earlier order has force and vitality and cannot be questioned at all.

4. The first contention raised on behalf of the appellant has reference to provisions of the Madras Hereditary Village Offices Act, 1895, and the proper construction to be put upon certain sections of that statute. It is therefore necessary to refer to its provisions somewhat to detail. The Revenue Divisional Officer is ordinarily referred to as "The Collector" for purposes of this Act and the chief executive officer of the District, the Collector, is styled the "District Collector". Section 7 empowers the Collector to fine, suspend, dismiss or remove, the holder of any of the offices forming class (1) to Section 3 (village munsifs etc.) for misconduct or for neglect of duty or incapacity or for non-residence in the village or for any other sufficient cause, and to make a record of his reasons for passing an order under this provision and furnish a copy of the same to the- village officer concerned. Section 10 enacts that when a vacancy occurs in any of the" village offices forming class (1) in Section 3 the Collector shall fill up the vacancy in accordance with the provisions of the following sub-sections. The qualifications are enumerated therein and the prohibitions are also contained therein. Sub-section (4) reads as follows:

"Where an office has become vacant by the dismissal, removal or suspension of the last holder, the Collector may direct that, until the death, re-appointment or return to duty of such last holder, the duties of the office shall be performed by some person duly qualified under Sub-section (i) who is not an undivided member of the family of the dismissed, removed or suspended officer; provided that when the officer who has been dismissed or removed, dies, or if the officer who has been suspended dies while under suspension, the vacancy caused by such death shall be filled up in accordance with the provisions of Sub-sections (2) and (3), i.e., by observing the rule of primogeniture and in some cases persons other than the direct heir being appointed."

5. Sub-section (6) is important in this way because it relates to the method of filling up a vacancy caused by resignation, dismissal, removal or suspension. It reads as follows:

"If a vacancy is caused by the resignation, dismissal, removal or suspension of the holder of an office and the Collector does not give the direction referred to in Sub-section (4) he shall fill up the vacancy in accordance with the provisions of this section as if it had been caused by the death of the said holder; provided that, upon the expiry of the period of suspension of an officer who has been suspended, or if, for any reason, an officer who has been dismissed, removed or suspended is permitted to resume the office from which he has been dismissed, removed or suspended, the person appointed to fill the vacancy caused by the said suspension, dismissal or removal shall cease to hold office."

6. Section 13 refers to a suit for offices, for recovery of emoluments and for registry as heir, i.e., that section allows persons who are entitled under Sub-section (2) or Sub-section (3) of Section 10 to sue for emoluments or to hold such office and enjoy the emoluments. This suit is not before a civil court but before the Collector. Section 23 provides for appeals from every order passed by a Collector under Section 6 or Section 7 and from every decree or order passed by a Collector in a suit preferred under Section 13 to be filed within one month to the District Collector, or, if the said order or decree was passed by the District Collector, an appeal shall lie, within three months to the Board of Revenue. The decision on appeal of the District Collector or the Board of Revenue, as the case may be, shall be final; provided that in respect of the offices of head of the village and village accountant, a second appeal shall lie, within three months to the Board of Revenue against the decision on appeal of the District Collector.

7. It was under the provisions of Section 7 that the first defendant was removed from office and his appeal and second appeal were under Section 23 of the Act. It was in accordance with the powers conferred under Section 10 that the plaintiff was appointed and the contention is that the proviso to Sub-section (6) of Section 10 would come into play when the dismissed or removed holder of the officer is, 'for any reason', permitted to return to duty.

8. The first argument of the learned counsel for the appellant is that the proviso to Sub-section (6) of Section 10 makes it obligatory, for the person appointed by the Collector, in the place of one who has been suspended, or removed, or dismissed, to give room to the officer whose dismissal, removal, or suspension is, for any reason, cancelled and he is permitted to resume the office from which he has been dismissed, removed, or suspended; and in that case the person appointed to fill the vacancy caused by the suspension, dismissal or removal shall cease to hold office. The first defendant contends that on account of the words "for any reason", even if his dismissal or removal, was not set aside by any legitimate right of appeal, the plaintiff, who was appointed to fill the vacancy, has to vacate for him and that he should be permitted to resume the office. What is urged is that ordinarily, where pending an appeal a person is appointed to fill an office, when that appeal is allowed he has to vacate it. In the present case, because of the very wide import of the words "for any reason" it should be held that since the order of the Government which is not one contemplated by the statute restores him to office, he cannot be denied the right to hold office and recover the same from the person appointed in his stead. It is further urged that the words "for any reason" contemplate the cancellation by the authority itself of the order of dismissal or suspension or by an appellate authority or by a revisional authority, and that it is not open to the person appointed to fill the vacancy to question the correctness or propriety of the order restoring the dismissed or the removed incumbent. We are not inclined to accept the contention which would lead to such a drastic result. In our opinion all that, the proviso to Sub-section (6) of Section 10 contemplates is that if by legitimate means, that is by an appeal or a second appeal, a person who has been dismissed or removed from office is allow-ed to come back by the order of dismissal or removal being cancelled, then the person who is appointed shall vacate the office. What is to be remembered is that the operative part of the section relates to the filling up of the vacancy and the method of doing it and the proviso is only in the nature of a restitution. The correct and proper way of reading the sub-section with its proviso is to interpret it as laying down that the order of appointment for filling up the vacancy caused by resignation, dismissal, removal or suspension, is subject to a defeasance in case the person who is removed, dismissed, or suspended, is permitted to resume duty by the cancellation of the embargo put upon him. It does not mean that a higher authority not vesied with any power or jurisdiction can, without legal justification, cancel a perfectly valid order of dismissal, suspension, or removal and permit the return to duty of an officer who has been properly dismissed or removed from office. Sub-sections (4) and (6) have to be read together in conformity and harmony with each other. In our view, all that the proviso to sub-section (6) lays down is that the fact that a qualified person under Sub-section (4) has been appointed to fill a vacancy caused by the dismissal, removal, or suspension, by an authority, should not prevent the legitimate holder, if he is later on permitted to resume duty, from reaping the fruits of the appellate order or the second appellate order. It seems to us therefore that the extreme contention put forward that any illegal order of cancellation restores the dismissed individual to the original office cannot be supported. The words "far any reason" should receive a meaning in conformity with the pro-visions of the statute and not in derogation of the intent as well as the written provisions of law. Construed in this manner, we cannot hold that oven though the order under Ex. A. 7 was passed without any statutory authority, still the first defendant can be allowed to resume office. The above contention was based upon the supposition that the basis for Ex. A. 7, viz., the order of the Government restoring the first defendant to office was illegal.

9. The next line of attack by the first defendant is with regard to the maintainability of the suit itself. The first defendant says that the present suit for a declaration is only a make believe and is in reality a suit for the recovery of the office of village munsif. That is, by getting the declaration, the plaintiff wants to get back the office from which he had been dismissed, and therefore in substance the claim is one for the recovery of office for which purpose the proper forum is not a civil court but the court of the Collector under Section 13 of the Act. Where a special machinery is constituted for dealing with certain disputes then it is not open to the parties to resort to the ordinary civil courts. In this case, according to the first defendant it is open to the plaintiff to sue for the recovery of the office under Section 13 before the Collector. Against the decree of the Collector an appeal will lie to the District Collector and since the office is one of the head of the village, a second appeal will also lie to the Board of Revenue. Without resorting to these remedies and availing himself of the provisions of Sections 13 and 23 of the Madras Hereditary Village Offices Act the plaintiff has no justification to come before a civil court and sue for a declaration which in essence is one for the recovery of the office. In this connection Section 21 of the Act has also to be considered by which jurisdiction of civil courts is barred with regard to matters specially enacted in this statute.

That section lays down that no civil court shall have authority to take into consideration or decide any claim to succeed to any of the offices specified in Section 3 o'r any question as to the rate or amount of the emoluments of any such office or, except as provided in proviso (ii) to Sub-section (1) of Section 13, any claim to recover the emoluments of any such office. Claim to succeed to the office of headman is rea'ly what the plaintiff asks for, and therefore according to the defendant, a civil court will have no right to adjudicate on this claim. Great re liance is placed by the learned counsel for the appellant on a judgment of Somayya J. in -- Narasimha Rao v. Venkataramana Rao', 1941- 2 Mad L J 439, where the learned Judge held that where the plaintiff claimed a right of suc cession under the Madras Hereditary Village Offices Act and alleged that the defendant was appointed by the revenue authorities in viola- lion of his right, his remedy is to sue under Section 13 of the Act in the Revenue Court for the recovery of his office from the person alleged to have been wrongfully appointed and there fore the plaintiff, by merely confining his relief as one for a declaration of the invalidity of the defendant's appointment, cannot be permuted to agitate the matter before a civil court. The learned Judge further held that Section 21 of the Act bars a civil court from entertaining such a suit.

In addition to this, the decision in sapathi v. Secretary of State', AIR 1936 Mad 852 was also brought to our notice. In that case Beasley C, J. held that where a person is registered as a minor karnam of village but later the Revenue Board cancelled the registration and directed the Revenue Divisional Officer to make a fresh appointment which is done, and the person deprived of his office flies in the civil court a suit for declaration that the cancellation by the Revenue Board was ultra vires and for delivering the office of karnam to him, the remedy sought by plaintiff, being one which in effect he could have had by filing a suit in revenue court under Section 13 of the Act, the jurisdiction of the civil court is barred under Section 21. Another case of the same variety is to be found in the judgment of Pandrang Row and King JJ. in -- 'Venkatasubbiah v. Secretary of State', 1933-1-Mad L J 539 where the learned Judges negatived the contention that a civil court is competent to declare that the decision of the Board of Revenue in a suit under Section 13 of the Madras Hereditary Village Offices Act, where the Buard had decided the matter in appeal to it, is contrary to law. Even assuming that the decision of the Board is contrary to law, it is not competent for a civil court to declare that such a decision was contrary to law, for then a party would be really attempting to obtain an adjudication by a civil court of a claim which has been excluded from the jurisdiction of a civil court. We are not prepared to hold that these authorities in any way preclude the civil court from entertaining the present suit.

In none of these cases was the question regarding the validity of an order of restoration by an appellate tribunal of a dismissed head of the village was ever considered. On the other hand -- 'Secretary of State v. Subbarao', 56 Mad 749 and -- 'Durraswami Reddiar v. Secretary of State', 1939-2-Mad L J 6 are two pronouncements of this court where the right of a civil court to adjudicate upon the invalid or ultra vires nature of the orders passed by the Collector or the Board of Revenue was considered and decided in favour of upholding the court's jurisdiction. Where in a second appeal to it, the Board of Revenue set aside the order of the Collector and restored that of the Revenue Divisional Officer, on the ground that there was no right of second appeal to the Board of Revenue from an appellate order of the Collector modifying an order of dismissal and converting it into one of suspension. Beasley C. J. and Bardswell J. held in -- 'Secretary of State v. Subba Rao',56 Mad 749 in a suit filed by the karnam for a declaration that the order of the Board of Revenue was invalid and ultra vires, that the order was without jurisdiction and was ultra vires and that the suit, though for a mere declaration, was maintainable. The principle underlying this decision is where the revenue authority, though purporting to act under the provisions of the Madras Hereditary Village Offices Act, octod without jurisdiction, or in excess of jurisdiction, the right of the civil courts to declare such acts ultra vires has not been abrogated or removed by any of the provisions of the Madras Heriditary Village Offices Act. Since no second appeal lay to the Board of Revenue in a matter where the Collector imposed in order of suspension, it was held by this court that the order of the Revenue Board setting aside the order of suspension in second appeal was without jurisdiction. The learned Judges have referred to a large body of case law in support of their decision and it is unnecessary to refer to any of them now. Wadsworth J. in -- 'Duraiswami Reddiar v. Secretary of Stair for India in Council', 1939-2-Mad L J 6 laid clown that when a village munsif lawfully appointed has been unlawfully threatened with ejection by an official act, he can maintain a suit to protect his right of office and it is a suit which the civil courts have jurisdiction to entertain. Therefore if the plaintiff, who has been lawfully appointed, is unlawfully tried to be ousted by the order of the Government on which Ex. A. 7 was passed by the Collector, then it is open to the plaintiff to sue for declaration. The learned Judge referred to an earlier decision of this court in -- 'Venkataraghaviah v. Chenchu Subbia', 33 Mad L W 294.

10. But it is contended by Mr. Ramachandra Rao for the appellant that even the question of the ultra vires nature of Ex. A. 7 based upon the Government's order can be agitated in a revenue court in view of the observations of the Judicial Committee in -- 'Raleigh Investment Co. Ltd. v. Governor General in Council', 1947-2-Mad L J 16 (PC). But we do not think that any support can be got from that decision for the proposition which the learned counsel enunciates. What their Lordships held was that Section 67 of the Income-tax Act has to be construed in the setting that the Act gives an assessee the right effectively to raise in relation to an assessment 'made upon him the question whether or not a provision in the Act was ultra vires. That is, it was open to the assessee to contend before the Income-tax authorities themselves that a certain provision of the Act by which he was assessed is ultra vires. He need not proceed to a civil court for getting a declaration regarding the ultra vires nature of the statute, but it is open to him to raise it before the same tribunal which itself is the creator of that statute, to hold whether certain provisions of that statute are intra vires or not. Both these cases emphasise that the jurisdiction of the civil courts is not ousted except where the matters are specifically provided for in the special statute and where the act of the authorities under that statute can be brought within the confines of the power strictly conferred upon the authorities. We are therefore of opinion that the objection regarding the forum and the maintainability of the suit cannot be upheld.

11. The question has now to be considered whether Ex. A. 7 based upon the Government's order Ex. B. 2 restoring the appellant to the office is ultra vires the powers of the Government. One thing is clear and that is that the provisions of the Madras Hereditary Village Offices Act do not confer any right upon the Government either to affirm or set aside the final orders made by any statutory body because Section 23 makes a decision on an appeal to the District Collector or the Board of Revenue, as the case may be, absolutely final. Here, in this case, the Board of Revenue, in second appeal under Ex. A. 3 upheld the order of dismissal made by the Revenue Divisional Officer. The statute does not confer upon the Government any power to interfere. But the learned Government Pleader contends that apart from the provisions of the statute there is a supervening and all pervading power in the Government of the State to interfere in all matters regarding appointments and dismissals made by subordinate authorities and therefore even if, in the first instance, the Government thought it had no power to interfere, the subsequent recantation of their order by Ex. B. 2 would be valid and such being the case the order of reappointment contained in Ex. A. 7 cannot be interfered with by the court. At the time Ex. B. 2 was passed, the Government of India Act, 1935, was in force, and the Government Pleader refers to various provisions of that Act justifying the action of the Government referred to in Ex. B. 2. Sections 52, 59, 240 and 241 of the Government of India Act were specially stressed. Section 52 relates to the special responsibilities of the Governor with regard to the safeguarding of the legitimate interests of persons who are, or have been, members of the . public services. Section 59 relates to the conduct of business by the Provincial Government and lays down that all executive actions of the Government of a Province shall be expressed to be taken in the name of the Governor. Sections 240 and 241 refer to the tenure of office of persons employed in civil capacities in India and contemplates that every person holding any civil post under the Crown in India holds it during His Majesty's pleasure. Section 241(5) was particularly relied upon and it runs as follows: "No rules made under this section and no Act of any Legislature in India shall be construed to limit or abridge the power of the Governor General or a Governor to deal with the case of any person serving His Majesty in a civil capacity in India in such manner as may appear to him to be just and equitable." We shall first of all dispose of the contention based upon Section 241(5). No doubt under that provision, any rule made under the Government of India Act, or any Act of the Legislature, cannot deprive the Governor of the special responsibility vested in him under the Instrument of Instructions to safeguard the interests of the public servants in India and therefore it is open to the Governor to interfere in any matter with regard to the dismissal or restoration of a public servant even if orders made under statutes had become final. In accordance with the scheme of the Government in vogue at the time when the Government of India Act, 1935, was in force, there were rules for the guidance of the business of the Government of Madras framed under Section 59 of the Government of India Act and rule 11 stated that all orders shall be in the name of the Governor and cannot be called in question under Section

53. If Ex. B. 1 had been addressed as a memorial to the Governor, and the Governor in his discretion, has interfered in accordance with the powers conferred on him under Sub-section (5) of Section 241, then it might have been said that whatever orders have been passed by the executive Government will be subject to revision at the instance of the Governor. But it has not been shown by the learned Government Pleader that the memorial Ex. B. 1 was disposed of as a petition for the redressal of grievance addressed to the Governor in accordance with the powers under Section 241(5). It is well known that rules had been framed when the governance of the country was under the authority conferred by the Government of India Act, 1935, for the Governor to safeguard the interests of the services and to receive and interfere in petitions against the order of the Government as such exercising his discretion. The result of such rules is that the Governor is made an appellate authority as it were over the Government of which he is the head; whereunder he acts under the advice of his ministers in matters relating to services.

We granted time to the learned Government Pleader to ascertain whether Ex. B. 1 was ever sent to the Governor in order that he might use his discretion and either confirm or set aside the order of the Government, Ex. A. 4, but the learned Government Pleader was not able to give us any information that Ex. B. 1 was either sent to the Governor or that Ex. B. 2 is an order passed by the Governor in pursuance of his special responsibility and powers reserved in him under Section 241(5). Therefore we take it that Ex. B. 2 is, from what appears on the face of it, an order by the Government reviewing their earlier order, Ex. A. 4. The structure of the constitution of a Provincial Government during the existence of the Government of India Act, 1935, before its amendment by the Indian Independence Act, had vested in the Governor a general power of safeguarding and protecting the services and that power is derived from Section 241(5), and the Instrument of Instructions issued to him. Since we are not satisfied that Ex. B. 2 was issued in pursuance of the exercise of any such power, we cannot agree with the learned Government Pleader that the order Ex. B. 2 emanated from the Governor acting in accordance with his powers under Section 241(5) and therefore we are not prepared to accept his contention.

12. The substantial argument next put forward by the learned Government Pleader to reinforce the point of view urged on behalf of the appellant is that firstly the Government of the Province has absolute discretion in the matter of retaining or removing servants of the Government under the authority derived from the Crown, because the Government of the province is the agent of the Crown and since the Crown has got absolute discretion in the matter of the retention of a member of the services, the order Ex. B. 2 whereby the first defendant was restored, resulting in the plaintiff being ousted, is valid and legal and cannot be called in question. Reference was made to Section 49(2) Of the Government o India Act, 1935, whore it is stated that the executive authority of each province extends to matters with respect to which the Legislature of the Province has power to make laws. This section corresponds to Article 162 of the present Constitution. The executive and the legislative authorities of the province are derived from the powers conferred under the Parliamentary statutes then in force. So far as the services are concerned, the history of this power can be traced back to Section 96-B of the Government of India Act, 1919, which in a somewhat changed form was re-enacted as Section 240 of the Act of 1935 and the same idea is incorporated in Article 311 of the Constitution. Whereas under Section 96-B of the Government of India Act, 1919, and Section 240 of the Act of 1935, every person in the civil service of the Crown in India holds office during His Majesty's pleasure, under Article 311 of the Constitution, on account of the republican nature of our Constitution, any person who holds a civil post under the Union or State shall not be dismissed or removed by any authority subordinate to that by which he was appointed. A similar provision is contained in Sub-section (2) of Section 240 of the Act of 1935. But the question here is not with regard to the dismissal by a person subordinate to the authority who appointed the officer, but the question is whether his holding of the office can be terminated at the will and pleasure of the Government of the Province.

In -- 'Venkatarao v. Secretary of State', ILR (1937) Mad 532, 537, the Privy Council had to consider the case of persons who had been removed from service by departmental authorities in this province, and their Lordships held that since Section 96-B of the Government of India Act, 1919, expressly states that persons in the civil service hold office during the pleasure of the Crown, the dismissal of a civil servant in utter disregard of the procedure prescribed by the rules framed under the section, will not give a right of action for wrongful dismissal. The privy Council had to consider two cases, --'Shenton v. Smith', (1895) A. C. 229 and --'Gould v. Stuart', (1896) A. C. 575. Discussing these two cases, Lord Roche in delivering the judgment makes a distinction between the holding of an appointment under the rules and regulations of the service as well as an appointment under conditions expressly enacted by a statute and lays down that in cases where the appointments are under the provisions of a statute, they cannot bo terminated except in accordance with the provisions contained in the statute. It is clear from -- 'Shenton's case', (1895) A. C. 229 that any servant of the Crown in the absence of a special contract, holds his office during the pleasure of the Crown and that in the case of a dismissal of such an officer he has no special cause of action. At page 235, Lord Hobhouse states as follows: "If any public servant considers that he has been dismissed unjustly, his remedy is not by a law suit, but by an appeal of an official or political kind." Later on he continues to observe:

"the difficulty of dismissing servants whose continuance in office is detrimental to the State would, if it were necessary to prove some offence to the satisfaction of a jury, be such as seriously to impede the working of the public service. No authority, legal or constitutional, has been produced to countenance the doctrine that persons taking service with a colonial Government to whom the regulations have been addressed, can insist upon holding office till removed according to the process thereby laid down."

We have no doubt that according to the law, an officer holds his post during the continuance of the Government of India Act, 1935, at the pleasure of the Crown, and unless there are special statutes regulating the appointments and removals, he can be removed at pleasure. See -- 'Ramdas Hajra v. Secretary of State', 17 Cal L J 75; -- 'High Commr. for India v. I. M. Lall', 1948-2-Mad L J 55 (PC) and -- 'District School Board of North Kanara, Karwar v. Parameswar Jattu', ILR (1943) Bom 411. This is clear from the judgment of Mookerjee J. in -- 'Ramdas Hajra v. Secretary of State', 17 Cal L J 75, where the case law has been very exhaustively considered and discussed. Except when it is otherwise provided by statute, all public officers and servants of the Crown hold their appointments at the pleasure of the Crown; and all, in general are subject to dismissal at any time without cause assigned. What the Crown can do independently of any enquiry and with-out the assignment of any reason, cannot be questioned in a court of law on the ground that the enquiry has not been satisfactory or in proper form, or that the reason assigned is unsound and open to criticism. Therefore a suit for damages for wrongful dismissal cannot be maintained against the Crown. As we have already stated, the Privy Council in -- 'Venkatarao v. Secretary of State', ILR (1937) Mad 532 (PC) makes a distinction between two classes of cases, viz., the -- 'Gould's case', (1896) A. C. 575 and -- 'Shenton's case', (1895) A. C. 229. The general category is defined and illustrated by -- 'Shenton's case', (1895) A. C. 229 and the exceptional category is defined and illustrated in the -- 'Gould's case', (1896) A. C. 575. It seems to us that the more appropriate category to be applied so far as our present case is concerned is that enunciated in -- 'Gould's case', (1896) A. C. 575, viz., where the office is held under conditions expressly enacted by a statute.

13. A statutory right as distinguished from an ordinary contractual right is clarified at page 62 in -- 'High Commr. for India v. I. M. Lall', 1948-2-Mad L J 55 (PC) where their Lordships of the Judicial Committee observe as follows:

"The respondent sought to establish a statutory right to recover arrears of pay by action in the civil court; he made reference to certain sections of the Government of India Act, 1935, viz., Sections 179(9), 247(4), 249 and 250, but it is enough to state that their Lordships are unable to derive from them any statutory right to recover arrears of pay by action."

In the present case the village munsif holds his office not as a result of any contractual right or obligation but in accordance with the provisions of a statute and if the statute fixes certain modes and methods for appointment, dismissal, or removal, the same have to be complied with, and if according to the provisions of that statute, a person appointed or dismissed cannot be removed or re-appointed then the general principle that an officer holds his post in the discretion of the Crown cannot be invoked to justify an action not contemplated by the Statute. The Madras Hereditary Village Offices Act makes the Board of Revenue the final authority in regard to the appointment and removal of the village officers and the Government was perfectly right in the view which they took in Ex. A. 4 that the law does not provide for interference by the Government in such matters. Such being the case and since we are satisfied that Ex. B. 2 is not the result of the Governor exercising his discretion but the Government reviewing their earlier order, it cannot be said that the reinstatement of the first defendant can be validly acknowledged as proper and just. It has therefore to be held that the confirmation of the order of dismissal of the first defendant by the Board of Revenue in second appeal stands and that his restoration to office by the order of the Government contained in Ex. A. 7 is invalid and inoperative. We are fortified in this conclusion by the procedure adopted by the Government in passing Madras Act XVIII of 1939. That was an Act intended to validate the restoration of village officers who lost their offices by reason of their association or connection with political movements. It so happened that on account of their participation in the political movements of early twenties, certain village officers had been dismissed by the then British Government and they were restored after the popular Government came into existence as a result of the Government of India Act 1935. But it was felt that such restoration was against the provisions of the Madras Hereditary Village Offices Act and therefore the Provincial Government had to resort to special legislation to validate the reinstatement of those officers. If, as a matter of fact, it is open to the Provincial Government to appoint any one or terminate the services of any one, at their will and pleasure, despite the provisions of the Madras Hereditary Village Offices Act, we see no reason why the reinstatement of those village officers by the Government in 1937 or 1938 was considered invalid. As it was thought that such restorations were outside the authority conferred under the Madras Hereditary Village Offices Act, the Act of 1939 had to be passed.

14. The last and final argument addressed to us was on the basis of Article 375 of the Constitution which lays down that all officers, judicial, executive, and ministerial, throughout the territory of India, shall continue to exercise their respective functions subject to the provisions of the Constitution. The argument is put in this way. On the 26th January 1950 When India became a republic and the Constitution came into being, the first defendant was holding the office of the village headman and therefore he continues to hold the post under this Article. How it came about was that even though the plaintiff was appointed as the village munsif, he could not get possession of the office and therefore the first defendant continued in that capacity on the date when the Constitution came into being. But the difficulty in accepting this argument is that Article 375 contemplates I only officers who were validly holding their1 office and not those who could be said to hold office despite their removal. As it has happened the final order of dismissal of the first defendant was confirmed by the Board of Revenue in second appeal as early as 4th May 1945 and since then the person who validly held the office must be the plaintiff and not the first defendant. Moreover, by the time the Constitution came into existence, the Subordinate Judge had already passed his decree declaring that the plaintiff cannot be removed from office and that he was the properly appointed village munsif of Nandigama village. The decree was passed on the 24th December 1948 and since an order of injunction had been passed in appeal by this court it cannot be said that the first defendant has obtained any valid right to hold office as a result of that interlocutory order. We therefore agree with the Subordinate Judge that the order, Ex. A. 7, is invalid and inoperative and that under that order the first defendant cannot assume the office of, the village munsif of Nandigama village. The lower court was therefore perfectly justified in decreeing the suit and this appeal is dismissed but in the circumstances each party will bear his costs throughout.


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