Skip to content


K.M. Rajagopalan Vs. State of Madras and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtChennai High Court
Decided On
Case NumberC.S. No. 216 of 1952
Judge
Reported inAIR1954Mad1155
ActsGovernment of India Act, 1935 - Sections 240, 240(2) and 240(3); Constitution of India - Article 311; Indian Independence Act, 1947 - Sections 8, 9, 10 and 10(1); India (Provisional Constitution) Order, 1947
AppellantK.M. Rajagopalan
RespondentState of Madras and anr.
Appellant AdvocateM.K. Nambiar and ;C.F. Louis, Advs.
Respondent AdvocateAdv. General, i/b., Asst. Govt. Pleader and Govt. Pleader
Cases ReferredDum v. Queen
Excerpt:
service - termination - sections 240, 240 (2) and 240 (3) of government of india act, 1935, article 311 of constitution of india, sections 8, 9, 10 and 10 (1) of indian independence act,1947 and india (provisional constitution) order, 1947 - signification of pleasure in terminating service of an officer subject to qualifications laid down in section 240 (2) and 240 (3) - section 240 qualified and before termination of service of an officer a reasonable opportunity of showing cause against action proposed to be taken in regard to him is condition precedent and dismissal cannot be by any authority subordinate to that by which he was appointed - instead of adopting course laid in section 240 (3) and rules relating to services provincial government chosen short cut method under assumed power.....krishnaswami nayudu, j.1. the plaintiff was a member of the indian civil service, who joined duty at madras in october 1837. he was sub-collector and joint magistrate at dindigul and on 2-6-1947, he went on leave. while on leave at madras, he received a memorandum issued by the government of india, home department, dated 18-6-1947, ex. p-2, asking him to communicate within ten days of the receipt of the letter whether he wished to continue in service of the government in view of the withdrawal of the secretary of state's control over his majesty's services consequent on the intention to transfer power from the british government to indian hands, or whether he desired to retire from service. he sent a reply to the joint secretary, home department, government of india, with a copy of the.....
Judgment:

Krishnaswami Nayudu, J.

1. The plaintiff was a member of the Indian Civil Service, who joined duty at Madras in October 1837. He was Sub-Collector and Joint Magistrate at Dindigul and on 2-6-1947, he went on leave. While on leave at Madras, he received a Memorandum issued by the Government of India, Home Department, dated 18-6-1947, Ex. P-2, asking him to communicate within ten days of the receipt of the letter whether he wished to continue in service of the Government in view of the withdrawal of the Secretary of State's control over His Majesty's services consequent on the intention to transfer power from the British Government to Indian hands, or whether he desired to retire from service. He sent a reply to the Joint Secretary, Home Department, Government of India, with a copy of the same to the Chief Secretary to the Government of Madras, on 2-7-1947, Ex. P-3, expressing his desire to continue to serve the Madras Government.

2. On 9-8-1947, he received a demi-official communication from Mr. Scott Brown, Chief Secretary to the Government of Madras, Ex. p-6, dated 7-8-1946, informing him that the Government have decided not to retain him in service after 15-8-1947, that his services would be terminated on the afternoon of the 14-8-1947, and his present leave v;ouid be automatically converted Into leave preparatory to retirement, that he might also apply for the extension of leave, if eligible, and that a formal communication would Issue to him shortly from the Government of India terminating his services as from 14-8-1947 afternoon. It is the case of the plaintiff that thereafter he had an interview with the then Chief Minister of Madras, Sri O. P. Ramaswami Reddiar and also the then Chief Secretary, Mr. W. Scott Brown, and was given to understand by both of them that the sanction of the Secretary of State for India had been obtained for the termination of his services and nothing could therefore be done. He was granted leave to which he was entitled, which extended upto 10th April 1949.

The plaintiff's case is that, having been assured by the highest authorities in Madras that the termination of his services had been ordered by, or with the consent of, the Secretary of State for India, he believed those statements that the Secretary of State for India who was the only authority empowered to remove the plaintiff from service, had issued the said orders and therefore accepted the compensation paid to him. He, however, did not receive any formal orders from the Government of India, as promised in the letter of 7-8-1947, Ex. P-6. He thereafter met another member of the Indian Civil Service, Mr. R. M. Sesha-dri, whose services had similarly been terminated and he came to know from Mr. Seshadrl that the latter had instituted a suit for a declaration that the order terminating his services was illegal and void.

On 8-6-1949, he wrote Ex. P-12 to the Premier, Government of Madras, asking for reinstatement, followed by another letter of 20-6-1949, Ex. P-13, to which the Chief Secretary to the Government of Madras replied by Ex. P-14, dated 11-8-1949 that the Government regretted their inability to reinstate him in service. He sent two communications to the Government of Madras and to the Government of India on 15-4-1951 and 7-10-1951, respectively and his case is that he did not receive any reply from either. But the Government of India appears to have sent a reply on 10-11-1951, Ex. P-15, informing him that the Government of Madras was authorised to terminate his services with effect from 15-8-1947 and granting him the compensation and stating that there was no need for any formal communication from the Government of India to him direct.

The plaintiff's case is that the order of 7-8-1947, which was passed by the Government of Madras terminating his services as and from the afternoon of 14-8-1947 was null and void and the result is that in law he must be deemed to continue in service. The plaintiff is prepared to refund the amount of compensation received by him under the circumstances. He filed a writ petition No. 679 of 1951, in the High Court, but the same was dismissed on the ground of delay without expression of any opinion on the merits of the case. The plaintiff therefore asks for a : decree declaring that the order issued by the Chief Secretary to the Government of Madras on 7-8-1947 is null and void and Inoperative and that the plaintiff must be deemed to continue in the Indian Civil Service.

3. The first defendant is the State of Madras represented by its Chief Secretary and the second defendant is the Union of India. Separate written statements have been filed. Their contentions are similar. The gist of the defence is that on 30-4-1947, the Viceroy of India made an announcement. Ex. P-1, regarding the grant of compensation for premature termination of the services, which stated that as the transfer of power would mean premature termination on that date of a, career under the ultimate authority of Hist Majesty's Government and that of the British Parliament, the Government of India undertook that those members of the Secretary of State's services who continued to serve under the Government of India after the transfer of power would do so on their present terms and that provisions would be made in the Treaty to deal with the matters and that, as regards those that were not invited to continue to serve under the Government of India after the transfer of power, suitable compensation would be payable; that, in pursuance of this announcement, the Government of India circularised the officers of the Secretary of State's services by a circular, Ex. P-2, dated 18-6-1947; that though the plaintiff informed his desire by Ex. P-3 to continue to serve the Madras Government, the latter decided not to invite the plaintiff to be in service after the transfer of power on account of past record and issued the letter, dated 7-8-1947, Ex. F-6 and the Government of Madras Issued the necessary release certificates and he was also granted a compensation of 4500 and that the Government of India by their telegram, dated 14-8-1947 to the Government of Madras, Ex. P. 10, intimated that they had no 'objection to the Provincial Government's proposal to terminate the services of the plaintiff.

Their contentions are (1) that on the transfer of power to the newly constituted Dominion of India in pursuance of the Indian Independence Act as from 15-8-1947, the tenure of service of the plaintiff came to an end and he had no legal claim to continue in service thereafter, and that as the plaintiff was holding the office during His Majesty's pleasure, his career under the covenant with the Secretary of State came to a legal termination as and from 15-8-1947; (2) that the alleged termination of the plaintiff's services was only from 15-8-1847, and that on such date the Province of Madras acting under the instructions of the Government of India were competent to decline to accept the offer to continue in service made by the plaintiff and the formal communication by letter dated 7-8-1947, Ex. P-6, was only in pursuance of the instructions of the Government of India; (3) that the plaintiff never questioned the authority of the Province of Madras for terminating his services and, after accepting the compensation without any protest, it would not be open to him to ask for any relief; and (4) that according to Section 10(1), Indian Independence Act, the provisions relating to the appointment to Civil posts under the Crown in India by the Secretary of State were not to continue in force after 15-8-1947; the clear effect of those provisions was to terminate the services of officers of the Secretary of State's services and the decision of the Province of Madras was therefore valid and based on legal authority.

4. The following issues were framed in the suit:

'1. Was the termination of the services of the plaintiff by the Government of Madras as per its letter D, O. No. 3795/47-62, Public (Special Department) dated 7-8-1947, not legal, operative and In conformity with the provisions' of the Government of India Act, 1935, and within its Jurisdiction as alleged in paragraphs 3, 15, and 16 of the plaint?

2. Had the Government of India the legal authority to validate the termination of the services of the plaintiff by the Government of Madras?

3. Were any misrepresentations made to the plaintiff as alleged in paragraph 8?

4. Did the plaintiff's appointment in the Indian Civil Service automatically terminate on 15-8-1947 and has he no legal claim to continue in services thereafter?

5. Is the plaintiff estopped from maintaining the present action on account of his letter dated 8-6-1949?

6. Is the suit maintainable?

7. Is the suit in time?

8. Is any of the defendants liable?

9. To what relief, if any, is the plaintiff entitled?'

5. The suit originally came up before our learned brother Chandra Reddy J. where evidence of the plaintiff was taken and, in the course of the arguments, a suggestion was made by the counsel on both sides that, in view of the importance of the constitutional question arising in the suit, the suit might be heard by a Division Bench. The suit was therefore directed to be posted before us for hearing.

6. ISSUES I, 2 AND 4: The demi-official letter of 7-8-1947 written by the Chief Secretary to the Government of Madras, Ex. P-6, to the plaintiff is the only communication addressed to him by any Government intimating him that he will not be retained in service and that his services will be terminated on the afternoon of 14-8-1947. There have been certain negotiations going on between His Majesty's Government and the Government of India regarding the position of the members of the Secretary of State's services in the new Governmental set up after the transfer of power and the decision of the Government of India was made known in the announcement, Ex, P-l dated 30-4-1947, in pursuance of which the members of the services were asked to intimate their desire to continue in service. On 31-7-1947, the Government of India circulated the Secretaries to all Provincial Governments by Ex. p-5 issuing Instructions regarding the persons who would be entitled to compensation, and with reference to those whose offer to continue in service was not accept-ed and who were relieved and proceeded on leave preparatory to retirement on 15th August, the Provincial Governments were asked to send a communication in the form of draft B attached to Ex. P-5, and they were authorised to issue such certificates. The draft form B is in the following terms:

'To

The Under-Secretary of State for India,

India Office, London.

Dated; Fort St. George, August 1947.

Sir,

I am directed to say that as Mr............. will not continue in service of Government of India after the transfer of power, he will be relieved and will proceed on leave preparatory to retirement on or about the 15th August 1947 and will be entitled to compensation or resettlement grant, as the case may be, as from the 15th August 1947.

Your obedient servant,

Chief Secretary to Government.'

7. In the present case, such a certificate was issued by the Chief Secretary to the Government of Madras on 8-8-1947 (Ex. P-7) Informing that the plaintiff would not continue in the service of the Government in India after the transfer of power and that he would be entitled to compensation. Exhibit P-9 is in the form of an express letter, which was sent to all Chief Secretaries of Provincial Governments informing that if Provincial Government did not desire to continue any officers mentioned in the list in service, they should telegraph names of such officers. Such a letter has apparently gone to the Chief Secretary to the Government of Madras, and the reply is a telegram, dated 14-8-1947, Ex. P-10, from the Home Department. New Delhi, to the Madras Government where among other matters the following appears: 'No objection to your proposal to terminate services of Seshadri, Swaminathan and Rajagopalan,' Bajagopalan being the plaintiff.

After the intimation to the Government of Madras of the plaintiff's desire to continue in service, the Government of Madras must have informed the Government of India in pursuance of Ex. P-9 the names of such officers including the, plaintiff with reasons for not continuing them; but that communication has not been placed before us. That would disclose the reasons which urged the Madras Government for non-retention of the plaintiff in service. But the proposal, however, to terminate his services was accepted by the Government of India is evident from the telegram, Ex. P-10. From a reading of Exs. P-5, P-6, P-7, P-8, P-9 and P-10 together, it is manifest that there has been a termination of the plaintiff's service, the termination of such service to take effect from the afternoon of 14-8-1947 and the only intimation of the termination is by the demi-official letter of 7-8-1947 (Ex. P-6) written by the Chief Secretary to the Government of Madras. But the reasons for such termination are not forthcoming. The question, therefore, that arises is whether the termination of the plaintiff's services in such circumstances could be upheld:

8. The tenure of office and the conditions of service of the members of the services appointed by the Secretary of State for India were governed by the provisions of the Government of India Act, 1935. Section 240 of the Act deals with the tenure of office of such officers, and under cl. (1) of that section, 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, except as expressly provided by the Act. The principle of the English law that a civil servant holds his office at His Majesty's pleasure, though incorporated in the Government of India Act, Is governed by the qualifications and limitations provided in the Act, and the scope and extent of such limitations have been the subject of Judicial pronouncements.

Such qualifications and limitations circumscribing the power of His Majesty to dismiss a civil servant began for the first time to be incorporated In Section 98-B, Government of India Act, 1919. Under Sub-sections (2) of Section 240, Government of India Act, 1935, no civil servant shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed, and under Sub-sections (3) he shall not be dismissed or reduced In rank until he has been given a reasonable opportunity of showing eause against the action proposed to be taken in regard to him. 'Dismissal' has been interpreted to include 'removal' under Section 277(1) of the Act.

9. In - 'R. T. Bangachari v. Secy, of State' , where the dismissal was by an authority subordinate to that under which the officer was appointed, in considering the proviso to Section 96-B, viz,, that no person in the civil service of the Crown may be dismissed by any authority subordinate to that by which he was appointed, and with reference to the view taken by the High Court that the power of dismissal was In fact delegated under the rules and was lawfully delegated to the person who purported to exercise it, the Privy Council was of opinion that such a dismissal was bad and inoperative and as delegation of such power would wipe out a proviso and destroy a protection contained in the section itself the statutory safeguard should be observed with the utmost care.

10. In -- 'R. Venkata Bao v. Secy, of State' , the Privy Council held that Section 96-B contained a statutory and solemn assurance that the tenure of office though at pleasure would not be subject to capricious or arbitrary action.

11. In -- 'High Commr for India v. I. M. Lall , which was an appeal to the Privy Council from the Federal Court of India, it was held that the provisions of Sub-section (3) of Section 240, Government of India Act, are prohibitory in form which is inconsistent with their being merely permissive and that they are mandatory and necessarily qualify the right of the Crown recognised by Sub-sections (1) and provide a condition precedent to His Majesty's exercise of his power of dismissal provided by that Sub-section.

12. The signification of His Majesty's pleasure in terminating the service of an officer is subject to the qualifications laid down in Sub-sections (2) and (3) of Section 240. Section 240 is therefore qualified by Sub-sections (2) and (3) and before the termination of the service of an officer, which may be by expression of His Majesty's pleasure a reasonable opportunity of showing cause against the action proposed to be taken in regard to him is a condition precedent, and the dismissal cannot be by any authority subordinate to that by which he was appointed.

13. Prior to the decision of the Federal Court in -- 'Punjab Province v. Tarachand', AIR 1947 FC 23 (D), the law was that notwithstanding the limitations imposed by the remaining sub-sections of Section 240 on the prerogative right of the Crown to dismiss its servant given under Sub-section (1) of Section 240, a public servant was not entitled to maintain a suit against the Crown and that an officer could get only a declaration that the order of dismissal was either bad or inoperative and no suit for declaration, damages or arrears of salary was maintainable. For the first time, the Federal Court in -- 'AIR 1947 PC 23 (D)', held that a servant of the Crown in India, who was dismissed in contravention of the provisions of Section 240(2) had the right to maintain a suit for recovery of arrears of pay which have become due to him and that there was no warrant for the proposition that relief must be limited to a declaration and Courts could not go beyond that relief. . The principle laid down in -- 'AIR 1947 FC 23 (D)', was followed in a recent Judgment of the Supreme Court in -- 'State of Bihar v. Abdul Majid' : (1954)IILLJ678SC .

14. There being no order from the Secretary of State for India, the authority which appointed the plaintiff, and the only order relied on toeing Ex. P.6 the demi-official letter written by the Chief Secretary to the Government of Madras, the Secretary of State being nowhere in the picture, the termination of the plaintiff is a contravention of the provisions of Sub-sections (2) of Section 240 and therefore, there has been no removal in accordance with the provisions of the Act.

15. The question, however, arises whether the provisions of Section 240, Government of India Act, were in force on 7-8-1947, when Ex. P. 6 was sent to the plaintiff or on the afternoon of 14-8-1947, when the plaintiff's services were deemed to have been terminated. On 30-4-1947, there was the Viceroy's announcement. That announcement was a declaration of the policy of His Majesty's Government to secure the tenure of office and the emoluments and the privileges of the services with the new Government by means of a treaty on the transfer of power and to provide for suitable compensation for such members of the services, who were not Invited to continue to serve under the Government of India after transfer of power. In pursuance of that announcement of the policy, the Government of India proceeded to implement the proposals of His Majesty's Government and began to take decisions as to which of the officers had to be retained and which of the officers had to be sent away with compensation.

In the plaintiff's case, the decision not to retain him appears to have been taken by the Government of Madras which decision had the acceptance of the Government of India. These declaration of policies and the negotiations between His Majesty's Government and the Government of India cannot have the effect of overriding the provisions of statute, since no amount of orders of the King in Council or orders of the executive can change the law, as only an Act of Parliament could interfere with the provisions of the Government of India Act.

16. The Act of Parliament, which came into existence in connection with the transfer of power, was the Indian Independence Act which was passed on 18-7-1947. It was

'an Act to make provision for the setting up in India of two independent Dominions, to substitute other provisions for certain provisions of the Government of India Act, 1935, which apply outside those Dominions, and to provide for other matters consequential on or connected with the setting up of these Dominions.'

Two new Dominions were to be set up, the Dominion of India and the Dominion of Pakistan as and from the appointed date, which was fixed as 15-8-1947. Section 8 of the Act deals with temporary provision as to Government of each of the new Dominions, and Sub-sections (2) provides:

'Except in so far as other provision is made by or in accordance with a law made by the Constituent Assembly or the Dominion under Sub-sections (1) of this Section, each of the new Dominions and all provinces and other parts thereof shall be governed as nearly as may be in accordance with the Government of India Act, 1935; and the provisions of that Act and of the Orders in Council, rules and other instruments made thereunder, shall, so far as applicable and subject to any express provisions of this Act, and with such omissions, additions, adaptations and modifications as may be specified in orders of the Governor General under the next succeeding section, have effect accordingly.'

17. Under Section 9, the Governor General was authorised to promulgate orders for making such provision as might appear to him necessary or expedient for giving effect to the transfer from His Majesty's Government to the new Dominions in respect of the matters specified in the clauses to Sub-sections (1) of Section 9 and under Sub-clause (c), the Governor General was entitled to promulgate an order for making omissions from, additions to, and adaptations and modifications of, the Government of India Act, 1935, among others. Section 9 was to have effect as and from 3-6-1947, and under Sub-sections (4) of Section 9 orders promulgated by the President under this section were to have effect upto the appointed day, in British India, and on and after the appointed day, in the new Dominion. Section 10 dealt with the Secretary of State's services, and Sub-sections (1) and (2) are as follows :

'l. The provisions of this Act keeping in force provisions of the Government of India Act, 1935, shall not continue in force the provisions of that Act relating to appointments to the civil services of, and civil posts under, the Crown in India by the Secretary of State, or the provisions of that Act relating to the reservation of posts.

2. Every person who

(a) having been appointed by the Secretary of State, or Secretary of State in Council, to a civil service of the Crown in India continues on and after the appointed day to serve under the Government either of the new Dominions or of any province or part thereof; or

(b) having been appointed by His Majesty before the appointed day to be a Judge of the Federal Court or of any court which is a High Court within the meaning of the Government of India Act, 1935, continues on and after the appointed day to serve as a Judge in either of the new Dominions;

shall be entitled to receive from the Governments of the Dominions and Provinces or parts which he is from time to time serving or, as the case may be, which are served by the courts in which he is from time to time, a Judge, the same conditions of service as respects remuneration, leave and pension, and the same rights as respects disciplinary matters or, as the case may be, as respects the tenure of his office or rights as similar thereto as Changed circumstances may permit, as that person was entitled to immediately before the appointed day.'

18. Several orders were promulgated in respect of the various matters specified in Section 9 and one of such orders with which we are concerned is the order promulgated in respect of the matter covered by Clause (c) of Sub-sections (1) of Section 9 relating to the Government of India Act, that is, the India (Provisional Constitution) Order, 1947, promulgated on 14-8-1947. The schedule to that order contains the several modifications to the Government of India Act, and the Government of India Act as so modified was to be the law applicable to the Dominion. In so far as Section 240 Is concerned, the only alteration made as a result of the India (Provisional Constitution) Order was in respect of Sub-sections (2). Sub-section (2) as amended is in the following terms :

'No such person as aforesaid who having been appointed by the Secretary of State or the Secretary of State in Council continues after the establishment of the Dominion to serve under the Crown in India shall be dismissed from the service of His Majesty by any authority subordinate to the Governor General or the Governor according as that person is serving in connection with the affairs of the Dominion or of a Province, and 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.'

19. This amendment is consequent on the ceasing of the powers of control by the Secretary of State over the services in India. Sections 244 to 246 and 248 to 250 have been omitted as those provisions related to recruitment by the Secretary of State and to reservation of certain posts. That was to bring it into conformity with Section 10(1) of the Indian Independence Act. Section 240, Government of India Act, was therefore In operation on 14-8-1947 and the Indian Independence Act and the India (Provisional Constitution) Order, 1947, did not make any change so as to affect the rights of the officers to the protection afforded under Section 240, Government of India Act. It follows therefore that Section 240 was in full force on the relevant date and the termination of the plaintiff's services is in disregard of Sub-sections (2) and (3) of 8. 240, Government of India Act.

20. The learned Advocate General, however, argued that in the present case the termination of the services of the plaintiff was not as and by way of punishment and therefore there was no question of dismissal to invoke the aid of Sub-sections (2) and (3) of Section 240, and referring to the decision of the Supreme Court in -- 'Satish Chandra Anand v. Union of India' : [1953]4SCR655 , pointed out that under the Civil Services (Classification, Control and Appeal) Rules relating to conduct and discipline, there are seven kinds of penalties to which a member of the service may be subjected for indiscipline and misconduct and they Include censure, suspension, reduction in rank, removal from service and dismissal from service.

In that case, where an officer was employed by the Government of India oil a five year contract, which commenced in 1945 and expired in 1950, when his services were terminated in 'pursuance of a notice provided under the contract, it was held that it was an ordinary case of contract of service being terminated by notice under one of clauses of the contract and therefore Article 311 of the Constitution corresponding to Sub-sections (2) and (3) of Section 240 had no application and the termination could not be said to be a 'dismissal or removal from service' or a 'reduction in rank.'.

The contention of the learned Advocate General is that the termination in the present case was not for any misconduct or indiscipline and the termination was not as one of the penalties provided under the Civil Services (Classification, Control and Appeal) Rules relating to conduct and discipline, when alone the provisions of Sub-sections (2) and (3) of Section 240 should be complied with before His Majesty's pleasure is signified by a termination and that the Dominion of India consequent on the transfer of power from the Crown, did not intend to retain the plaintiff's services and in such circumstances, it would not be open to the plaintiff for his retention to rely upon any of the provisions of Section 240 before his service could be terminated.

The word 'dismissal' in Sub-sections (2) and (3) of Section 240 includes also a removal. In the present case, there is no doubt that the plaintiff has been removed from the service, the reason being that the Government of Madras did not intend to retain him in service. But Ex. P.6 makes it clear that the service of the plaintiff will be terminated, meaning, put an end to, from the afternoon of 14-8-1947. That the Government of Madras treated it as a termination and the Government of India so understood it is evident from Exs. P.6 and P.10, and such termination before 15-8-1947 putting an end to one's service tantamounts to removal and however much the Government of Madras may disguise its mind, It Is clearly made out that the Government of Madras did not intend to retain him for certain other reasons, which they must have placed before the Government of India, but have not chosen to disclose them.

But in paragraphs 2 and 3 of the written statement filed on behalf of the Madras State it is stated that the Government of Madras decided not to invite the plaintiff to be in service after transfer of power on account of past record. The termination therefore in the present case would tantamount to punishment, for the Madras Government did not intend to retain the services of one whom they did not want by reason of his past record. Except by way of inference there is nothing, however, to show that his past record Justified the termination of his services. Anyhow the termination of his services is not sought to be supported on that ground for obviously the plaintiff would be entitled to a reasonable opportunity of showing cause against the action that the Government might take.

There is therefore material on which it could reasonably be presumed that the action of the Government of Madras in terminating his services was by virtue of the previous unsatisfactory record in their opinion of the plaintiff about Which, however, there is no evidence, and therefore may be considered as a punishment. Even assuming that the termination of the plaintiff's services in the case could not be the result of any punishment, but was in pursuance of circumstances arising from the transfer of power over which His Majesty's Government had no control, it will not be open to rely upon the prerogative of the Crown to discharge a person without sufficient cause shown. The provisions of Section 240 place restrictions and limitations on the exercise of Hie Majesty's pleasure. The restrictions and limitations being mandatory they put a limitation on the right of the Crown to dismiss its servant at will. Whatever may be the cause, a member of the Indian Civil Service to whom Section 240 is applicable, cannot be sent out without sufficient cause being shown.

We are therefore unable to agree with the learned Advocate General's contention that the plaintiff cannot invoke to his aid the restrictions and limitations provided under Sub-sections (2) and (3) of Section 240 on the prerogative right of the Crown. It was to put a check on the exercise of the power of removal for capricious and untenable reasons that the services were given the protection in the Government of India Act.

21. Even apart from Section 240, if the covenant entered into by the plaintiff with the Secretary of State is looked into, which is in the form of Appendix I to the Indian Civil Services Manual, published in 1941, the termination of the plaintiff's services could not be supported. The covenant is as follows:

'This Indenture made the day of inthe year of our Lord 194 between hereinafter called the Covenantor, of the one partand the Secretary of State of the other part.Whereas the Secretary of State has appointedthe Covenantor to serve His Majesty as aMember of the Civil Service of India, in thePresidency of in the East Indies withthe option to the Government of India at anytime and from time to time to require himto serve elsewhere in India, such service tocontinue during the pleasure of His Majesty,His Heirs and Successors, to be signified underthe hand of the Secretary of State for India,but with liberty for the said Covenantor toresign the said service, with the previous permission of the Secretary of State or of theGovernment under which he may for the timebeing be serving.'

Even the signification of His Majesty's pleasure discontinuing the service of the plaintiff has not been shown, to be under the hand of the Secretary of State. There is no communication from the Secretary of State for India, nor even from the Government of India terminating his, services. On this ground also, the order impugned cannot be upheld.

22. The learned Advocate General then based an argument on Section 10(3) of the Indian Independence Act, the relevancy or the application of which to the present case we have not been able - to really understand or appreciate. His argument as we are able to gauge, was that prior to the enactment of Section 10(2) of the Indian Independence Act, by reason of the negotiations and the agreements, arrived at between His Majesty's Government and the Government of India, only those officers whose services were agreed to be continued by the Government of India became entitled to the benefit of the provision of Section 10(2) and impliedly those who offered to serve the new Dominion but whose offers were not accepted must be deemed to have ceased to be members of the service and that was the effect of Section 10(2). In short this provision, viz., Section 10(2) is a statutory recognition of the arrange-ment entered into between His Majesty's Government and the Government of India as regards the services, and the services of those who though offered to continue but whose offers were not accepted, have therefore ceased.

Section 10(2), in our view, was only a specific provision made in the Indian Independence Act itself with a view to protect the interest of the members of the services, who are appointed by His Majesty, the Secretary of State, or the Secretary of State in Council and who continued to serve the new Dominion, and their rights as regards remuneration, leave and pension and the tenure of office so that the members of the services may not have any fears in the changed circumstances. It was an assurance given to the services in advance on 18-7-1947, to enable them, to decide whether they wished to continue to serve the new Dominion.

In view of Section 8(2) and Section 9 applying the provisions of the Government of India Act and empowering the Governor General to promulgate such orders as might be necessary, ordinarily, there was no need to incorporate Section 10(2) but in view of the changed conditions, to allay any apprehensions on the part of the services, whose personnel included Britishers, apparently, it was thought necessary to incorporate a special provision constituting sufficient safeguards to them, so that those who might decide upon continuing in service might be amply assured of their position. In our view, Section 10(2) does not lend itself to an argument based upon it as regards the question as to whether the termination of the plaintiff's services was in accordance with law. We are unable to comprehend how Section 10(2) could be treated as statutory recognition of any arrangement between His Majesty's Government and the Government of India. In our view, Section 10(2) has no bearing on the question as to the termination of the plaintiff's services.

23. The plea that on the transfer of power to the newly constituted Dominion of India in pursuance of the Indian Independence Act the tenure of office of the plaintiff came to an end, meaning automatically, was however not supported as in view of the continuance in force of the Government of India Act, such an argument would not be open to the defence.

24. The further plea in the written statement that Section 10(1) of the Indian Independence Act had the clear effect of terminating the services of the Secretary of State's services is equally unsustainable, as the section only provided that in view of the change of authority in the matter of appointment, such of those provisions as related to appointments by the Secretary of State and the provisions relating to reservation of posts had to be deleted from the Government of India Act. That has no bearing whatsoever with regard to the tenure of officc of the services.

25. The order therefore of 7-8-1947, Ex. P. 6, is void and the plaintiff's services have not been terminated in accordance with law and such termination is therefore wrongful and in view of such a declaration, it will be necessary to see what would be the position of the plaintiff after 14-8-1947. Section 7(1) of the India (Provisional Constitution) Order, 1947, makes provision as regards such eases and is in the following terms:

'Subject to any general or special orders or arrangements affecting his case, any person who immediately before the appointed day is holding any civil post under the Crown in connection with the affairs of the Governor General or the Governor-General in Council or of a Province other than Bengal or the Punjab shall, as from that day, be deemed to have been duly appointed to the corresponding post under the Crown in connection with the affairs of the Dominion of India, or, as the case may be, of the Province.'

Excepting the order, Ex. P. 6, there is no order affecting the plaintiff's case, nor any arrangement, the arrangement that is contemplated under Section 7(1) being an arrangement entered into with the officer affecting his case. There is no such arrangement to which the plaintiff could be said to have been a consenting party and the order of 7-8-1947 having been found to be void the plaintiff, who was occupying the position of a Sub-Collector on leave on 14-8-1947, must be deemed to have been duly appointed to that post and therefore he must be deemed to continue in the Indian Civil Service, which continued to exist even after 14-8-1947, under the Government of the Dominion of India.

26. An argument was sought to be raised thatthe words 'civil post' would not apply to theplaintiff, as he is a member of the Civil Servicenot holding any post. The plaintiff as a member of the Civil Service was at any rate, holdingthe post of Sub-Collector of Dindigul on 2nd June1947, when he went on leave and he continuedto hold that post being in service. A 'civil post'is an office held by an officer and the fact thathe is a member of the Indian Civil Service couldnot be understood to mean that a member ofthe cadre of a service could not hold a 'civilpost'. The one refers to a cadre and the otherto an individual appointment, and we have nohesitation in holding that the plaintiff was holding a 'Civil post' immediately before the appointed day and he must therefore be deemed to havebeen legally appointed as from the appointedday, 15th August 1947.

27. It is further urged on behalf of the defence that a declaration in the terms asked for could not be granted as there was no breach of any statute, but only a breach of contract not with the Government of India but with the Crown. In view of our holding that Section 240 of the Government of India Act has been in force on 14th August 1947 and there has been a failure to comoly with the provisions of Section 240 before the services of the plaintiff could be determined, the plaintiff is entitled to the declaration prayed for

28. The termination of the plaintiff's tenure is by a demi-offcial letter of the Provincial Gov-ernment, which has obviously taken advantage of a situation arising from the transfer of power and decided to get rid of an Indian Officer of the Secretary of State's services and chosen to terminate his services under an authority assumed to have been conferred by the Government of India as a result of an arrangement between the British Government and the then Government of India as regards the future of the services. There was no ground for refusing to retain the plaintiff, an Indian, who expressed his desire to continue in the service of the new Government of his country, except it be in the opinion of the Provincial Government he had a bad record and therefore he was unwanted. The real reason therefore behind the Madras Government's refusal to retain him is obvious.

Instead of adopting the course laid in Section 240(3) of the Government of India Act and the rules relating to services, the Provincial Government have chosen a short cut method under an assumed Dower and authority, whereas no such power is found to have been vested or conferred on the Provincial Government, nor even on the Government of India, to override the provisions of the Government of India Act, which was then in force. The act, therefore, of the Madras Government in terminating the services of the plaintiff, a member of the Indian Civil Service, by a demi-official letter issued by its Chief Secretary in utter disregard of the statutory provisions governing the case is, not only irregular, but void.

29. Issues 3 and 5: The plaintiff's case is that he was made to understand in his interviews with the then Chief Minister and the then Chief Secretary to the Government of Madras that the sanction of the Secretary of State had been obtained for the termination of his services. He has supported the statement by his evidence and there is no contradiction. Until he met another member of the service Mr. Seshadri in April 1949, he was not aware that there was no specific sanction from the Secretary of State for India for the termination of his services and, on the assumption that the Secretary of State for India had given his sanction to the dismissal, he accepted the compensation and did not question the correctness of the action taken by the Government of Madras. There is no reason to disregard the plaintiff's case on this aspect and we are not able to see how he is estopped from maintaining this action.

30. Issues 6 and 7: These Issues are not argued. There is no doubt about the maintainability of the suit in view of the provisions of Sub-section (2) of Section 15 of the Indian Independence Act, Section 10 of the Indian Independence (Rights, Property and Liabilities) Order, 1947 and Article 294 of the Constitution of India. The suit being one for declaration is in time.

31. In the result, there will be a decree for the plaintiff as prayed for with costs.

Ramaswami Goundee, J.

32. I have had the advantage of perusing the Judgment which my learned brother Just now delivered and I should have thought it unnecessary to add any words of mine had it not been for the importance of the question that was argued on both sides at considerable length and with great ability.

33. This is an unfortunate case of a young I. C. Section Officer having been asked to go out of service on the eve of Indian Independence and the consequent transference of political power from Whitehall to New Delhi. As is well known, that great political change took place on 15th August 1947. By a letter dated 7th August 1947, marked as Ex. P.6 in the case, and which reached the plaintiff on 9th August 1947, the Govern-ment of Madras intimated to him that they had decided not to retain him in service after 15th August 1947 and that his services would be terminated on the afternoon of 14th August 1947. On that date, the plaintiff was on leave; but, before he went on leave, he was the Sub-Collector, Dlndigul. Neither in that letter, nor even subsequently, was the plaintiff told why he was not wanted or what considerations weighed with the Government of Madras to dispense with his services. All that still remains in the region of speculation.

This pattern of summary dismissal was adopted not only against the plaintiff, but against two other fellow-officers, Messrs. T. Section Swaminathan and R. M. Seshadri. Whether the plaintiff and the other two officers were really undesirable and therefore not suitable for the new set-up we do not know. If charges had been framed against them and they had been found guilty, and on that ground removed from service, then the Courts will have nothing to say against it. If, on the basis of previous record of work, the plaintiff or any other officer was really found to be undesirable and therefore unworthy of being continued in service after the transfer of power, by all means turn him out of office, but follow some procedure recognised by law. It is certainly expected of all Governments that they should deal with their servants, in a proper and legal way, and not arbitrarily or capriciously terminate their services without assigning any reasons. They can get rid of their servants, even the worst of them only by methods known to law.

The plaintiff, as an officer of the Indian Civil Service, belonged to the Secretary of State's services. Their tenure of office stood guaranteed by the Constitution. In fact, with reference to the civil services, such guarantee was provided In Section 240 of the Government of India Act, 1935. Clause (1) of that section declares that 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. Clause (2) enshrines a very important safeguard, namely, that no such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed; and Clause (3) adds another safeguard that no such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.'

Then Sections 244 to 350 make various provisions for the Secretary of State's services. There can be no doubt on those sections that the officers like the plaintiff who belong to the Indian Civil, Service and therefore to the Secretary of State's ' services can be dismissed only by the Secretary of the State and in accordance with certain rules of procedure. As was held in -- 'AIR 1937 PC 37 (A)', such power cannot be delegated even by the Secretary of State. We also saw the form of the covenant signed by the Indian civil servants and found that it provided that though the office was held during His Majesty's pleasure, such pleasure was to be signified under the hand of the Secretary of State for India. As observed in -- ' : [1953]4SCR655 (F)':

'the services in India have long been afforded certain statutory guarantees and safeguards against arbitrary dismissal or reduction in rank. Under Section 240 of the Government of India Act, 1635, the safeguards were limited to those two cases.'

AS regards the 'Majesty's pleasure' my learned brother has referred to all the cases, and it is enough to draw attention to the following observation of the Supreme Court in -- ' : (1954)IILLJ678SC (E)':

'The rule that a civil servant holds office at the pleasure of the Crown has its origin in the Latin phrase 'durante bene placito' ('during pleasure') meaning that the tenure of office of a civil servant, except where it is otherwise provided by statute, can be terminated at any time without cause assigned. The true scope and effect of this expression is that even if a special contract has been made with the civil servant, the Crown is not bound thereby. In other words, civil servants are liable to dismissal without notice and there is no right of action for wrongful dismissal, that is, that they cannot claim damages for premature termination of their services (See Eraser's Constitutional Law, page 186; -- 'Shenton v. Smith', 1895 AC 229 (G); -- 'Dum v. Queen', 1896 1 QB 116 (H) ).

This rule of English law has not been fully adopted in Section 240. Section 240 itself places restrictions and limitations on the exercise of that pleasure and those restrictions must be given effect to. They are imperative and mandatory. It follows that whenever there is a breach of restrictions imposed by the statute by the Government or the Crown, the matter, is justiciable and the party aggrieved is entitled to suitable relief at the hands of the Court.'

34. Before I proceed to express myself upon the main question which was argued at some length, I may briefly advert to the sequence of events which led to the order, Ex. P-6 of 7th August 1947, intimating the plaintiff that his services would be terminated as from the afternoon of 14th August 1947. In April 1947, His Excellency the Viceroy made an announcement in regard to the final transfer of power to Indian hands by June 1948. In that announcement, he gave indications as to the position of the servants then serving the Crown and what was to be their future after the transfer of power.

In paragraph 2 of that announcement, marked as Ex. P-1, the Viceroy stated that in regard to those serving under covenant or other form of agreement with the Secretary of State for India, or who hold commissions from his Majesty the King the transfer of Dower would mean premature termination on that date of a career under the ultimate authority of His Majesty's Government; and in paragraph 3, It was stated that the Government of India undertook that those members of the Secretary of State's services who continued to serve under the Government of India after the transfer of power should do so on their present terms as to scales of pay, leave, pension etc., and that provisions to that effect should be made in the treaty to deal with matters arising out of the transfer of power; and under clause 5, it was annouced that the Government of India agreed that compensation should be payable to such Indian officers of those services as were not invited to continue to serve under the Government of India' after the transfer of power, and the other classes of officers with which we are not concerned, and in paragraph 7, the Viceroy Informed the members of the Secretary of State's services that His Majesty's Government accepted the obligation to see that they are duly compensated for the termination of their careers consequent on the transfer of power.

This announcement would seem to embody the views of the Viceroy that the transfer of power would result in a premature termination of the Secretary of State's services. But the announcement itself does not contain on what authority the Viceroy expressed such an opinion as to the termination of the services on the transfer of power. It would rather seem that this announcement must have been made during the political parleys when things were in a state of flux, as in fact it contemplated transfer of power in June 1948, while as a matter of fact it took place very much earlier, and a treaty on this subject which was never entered into. This announcement, therefore, can hardly be accepted as the final expression of the decision of the Secretary of State of His Majesty's Government terminating the Secretary of State's services on the transfer of political power to Indian hands. Though coming from a high authority, this can by no means bring about a lawful termination of the services as on the 15th of August 1947.

In pursuance of this announcement, the Government of India addressed all the officers of the Secretary of state's services and the Chief Secretaries of the Provincial Governments on 18th June 1947, and ascertained from the officers whether they wished to continue in the service of the Government or whether they wished to retire from service (vide letters, Exs. P-2 and D-1). In the letter, Ex. D-l, the assumption was made by the Government of India that they had the right to decide which officers they should continue to retain in service after the transfer of power. They must have made that assumption only on the basis of the Viceroy's announcement without any further legal authority. Accordingly, they asked the Provincial Governments to indicate whether, for any reason, they would prefer not to continue any officer in service, notwithstanding the Officer's desire to remain in Service.

In his reply, Ex. P-3, dated 2nd July 1947, the plaintiff intimated the Chief Secretary to the Government of Madras that he desired to continue to serve the Government of Madras. But the Chief Secretary, by his letter, Ex. P-6, dated 7th August 1947, which I already referred to, informed the plaintiff that the Government had decided not to retain him in service after 15th August 1947, and that his services would be terminated on the afternoon of 14th August 1947, and that his present leave would be automatically converted into leave preparatory to retirement as from 15th August 1847, The plaintiff was also, furnished with the release certificate, Ex. p-7, dated 8th August 1947, in 'draft C' form, as proposed by the Government of India in their letter. Ex. P-5.

It will thus be seen that Ex. P-6 conveyed the intimation to the plaintiff of the decision of the Government of Madras that his services would be terminated on the afternoon of 14th August 1947, and that he would not be allowed to continue in service after the transfer of power. By itself, it w'as a mere intimation of the termination of his services on a future date and not an order of termination, as in fact it states that a formal communication will issue from the Government of India terminating his services as from the afternoon of 14th August 1947. No such formal communication was ever sent by the Government of India; and indeed, in their letter, Ex. p-15, they took up the position that there was no need for any such formal communication.

As the letter of the Madras Government was not an order In itself terminating the plaintiff's services, but only an intimation as to what would happen to him on a future date. It may not fall to be decided whether this was valid and within the competency of the Madras Government, for if as contended for the Government, on the transference of power on 15th August 1947, the services automatically terminated and the plaintiff ceased to be in service, then Ex. P-6 would be sufficient Intimation to the plaintiff that they were not retaining him in service. But, treating it as an order of termination, it is obvious that neither the Government of Madras nor even the Government of India had any authority, by reason or Section 240 of the Government of India Act, 1935, which was the constitutional provision then in force, to make any such order In respect of an officer appointed by the Secretary of State. There was no order at any time from the Secretary of State himself removing the plaintiff from service. Nor is there any evidence that the Secretary of State ever gave his concurrence to such removal.

However, by Ex. F-10, the Government of India stated that they had no objection to the proposal of the Government of Madras to terminate the services of the plaintiff and the two other I.C.S. officers who were then serving in this State. In September 1949, the Government of Madras sanctioned a compensation of 4500 to the plaintiff which he subsequently accepted. But, in the meantime, he made repeated representations to the Madras Government fay personal interview and by letters, Exs. P-12 and P-13 to reconsider their decision and to reinstate him in service. But the Government of Madras by their reply. Ex. P-14, turned down his request, expressing their 'inability to reinstate him. Then in April 1951, the plaintiff addressed the Government of India, but with no better results (vide Ex. P-15).

Thereafter the plaintiff had no option but to resort to the process of law to obtain redress, and accordingly he filed a petition to this court for issue of a writ of certiorari for quashing the order of the Government of Madras terminating his services. That petition was dismissed on the ground of inordinate delay; and so, the plaintiff has been obliged to file the present suit and ask for a declaration that the order issued by the Government of Madras on 7th August 1947, purporting to remove him from the Indian Civil Service as from the afternoon of 14th August 1047 is void and Inoperative and that the plaintiff must be deemed to continue as a member of that service.

35. The contention of the Government is simple and forthright. In paragraph 6 of the written statement, it is contended that on the transfer of power to the newly constituted Dominion of India in pursuance of the Indian Independence Act as and from the appointed day, the tenure of the service of the plaintiff came to an end and he had no legal claim to continue in service thereafter. It is further contended that the plaintiff was holding office only during His Majesty's pleasure and that when His Majesty's Government decided to transfer its power to the Dominion of India as and from 15th August 1947, the career of the plaintiff under the covenant with the Secretary of State came to a legal termination as from that date.

In pragraph 7, the contention is repeated that according to Section 10(1) of the Indian Independence Act, the provision relating to the appointment of civil posts under the Crown in India by the Secretary of State shall not continue in force after 15th August 1947 and the clear effect of those provisions was to terminate the services of the officers of the Secretary of State's services. That is the only main contention, that has been taken by the Government in the written statement, namely, that as from 15th August 1947, the Secretary of State's services came to an automatic termination and therefore as from that date it was in the option of the Dominion Government to continue such officers as they liked, eliminating those whom they did not want, such as the plaintiff. Therefore, the main question that has to be decided in this suit is, what was the position of the officers belonging to the Secretary of State's services on the transfer of power with effect from 15th August 1947? .

So far as the plaintiff was concerned, it is not disputed that he continued in service till at least 15th August 1947. His services were not terminated by the Secretary of State prior to that date. He was the only authority who could have removed the plaintiff from service prior to the appointed day by virtue of Section 240(2) of the Government of India Act, 1935. But the Secretary of State did not at any time direct the plaintiff's removal from service. It must also be remembered that except the order of the Government of Madras, dated 7th August, 1947, there was no other order directing the removal of the plaintiff from service. As I stated above, that order was a mere intimation to the plaintiff that he would not be continued in service after the appointed day. It was not an order in itself terminating the services of the plaintiff from that date. If, as pleaded by the Government in the written statement, the plaintiff's service came to an end, as the Service of all the officers belonging to the Secretary of State's services automatically terminated as on 15th August 1947, then, of course, the plaintiff who was not allowed to continue would go out of the office and the letter of 7th August 1947, would be sufficient intimation for that purpose.

It therefore becomes necessary to examine the provisions of the Indian Independence Act and see whether, on the provisions of that Act, there is any warrant for the contention that the Secretary of State's services terminated as on the appointed day. It is enough to refer only to Ss. 8, 9 and 10 of that Act. Section 8 provides in clause (1) for the constitution-making powers of the Constituent Assembly which was by that time called into being, but clause (2) of that section is important as it provides that except in so far as other provision is made by the Constituent Assembly of the Dominion, each of the new Dominions, and all Provinces shall be governed as nearly as may be in accordance with the Government of India Act, 1935, and the provisions of that Act, and of the Orders in Council, rules and other instruments made thereunder, shall, so far as applicable, and subject to any express provisions of the Independence Act, and with such omissions, additions and modifications, as may be specified in orders of the Governor-General under the next succeeding section have effect accordingly.

Thus, even after the appointed day, the provisions of the Constitution embodied in the Government of India Act, 1935, were continued in force and made applicable to the new Dominions which were carved out under the Independence Act, but subject to such omissions, additions or modifications as the Governor-General shall, by order, make under Section 9(1)(c) of the Independence Act. It was in pursuance of those powers that the Governor-General made the Order G. G. O, No. 14 dated 14th August 1947, called the India (Provisional Constitution) Order, 1947. I will deal with the relevant sections of that Order a little later. It will be seen that Section 10 of the Independence Act deals specifically with the Secretary of State's services. Clause (1) of that section is this:

'The provisions of this Act keeping in fores provisions of the Government of India Act, 1935, shall not continue fn force the provisions of that Act relating to appointments to the civil services of, and civil posts under the Crown in India by the Secretary of State, or the provisions of that Act relating to the reservation of posts.'

That only abrogates the provisions of the Government of India Act, 1935, relating to appoint-ments to the civil services of, and civil posts under, the Crown In India by the Secretary of State. By virtue of Section 8(2), the provisions of the Govern, ment of India Act, 1935, were to continue to apply to the new Dominions; but, after the creation of the new Dominion it would be an anomaly to retain the authority of the Secretary of State in regard to the appointments to the civil services and civil posts; and so the object of clause (1) of Section 10 was only to eliminate from the scene the authority of the Secretary of State; that is, what is abrogated by that clause is the authority of the Secretary of State and not the services themselves. In fact, the learned Advocate-General could not contend that that clause would support the theory of automatic termination set up in the written statement.

As a matter of fact, by way of giving effect to Clause (1) of Section 10, the Governor-General in his Order G. G. O. 14, referred to above, ordered the omission of Ss. 244 to 246 and 248 to 252 and Inserted suitable amendments to Ss. 240 and 247 of the Government of India Act, 1935, transferring the authority from the Secretary of State to the Dominion Government. But the more important provision is Clause (2) of Section 10 of the Independence Act, and it was on that clause that the learned Advocate-General based practically the whole of his argument. Clause 2(a) of that section states:

'Every person who, having been appointed by the Secretory of State, or Secretary of State in Council, to a civil service of the Crown in India, continues on and after the appointed day to serve under the Government of either of the new Dominions or of any Province or part thereof....... shall be entitled to receive from the Governments of the Dominions and Provinces or parts which he is from time to time serving the same conditions of service as respects remuneration, leave, and pension and the same rights as respects the disciplinary matters or, as the case may be, as respects the tenure of his office, or rights as similar thereto as changed circumstances may permit as that person was entitled to immediately before the appointed day.'

The learned Advocate-General contended that the word 'continues' meant only those officers who offered to continue in service and whose offer was accepted by the new Dominion, and those safeguards with reference to their tenure of service were therefore provided only for those classes of servants and not to others who did not continue on or after the appointed day. His line of reasoning was that prior to the coming into force of this section, all the necessary arrangements commencing from the announcement of the Viceroy had been gone through and the choice made as to who should be the officers who must be allowed to continue after the appointed day and who must be asked to quit the service; that Is to say the contention was that the fact that under Clause (2), provision as to the guarantee In regard to the services ot the officers who continued after the appointed day was made, is itself confirmatory of the option exercised, dispensing with the services of those officers who are not allowed to continue after that date.

According to the contention, this clause validated the elimination of the 'unwanted', officers of the Government of India or of Madras. But I fail to see how from the terms of clause (2), it can be inferred that with reference to the officers who were not wanted, and therefore not allowed to continue after the appointed day, the option was given to the Government of India or of Madras. That safeguard was made, and in fact, it would be necessary to make only in respect of officers who continued on or after the appointed day. But that had nothing to do with the question whether the other officers who were not wanted and who were not allowed to continue were made to demit their office in a proper or lawful manner.

Whether the Government of India or of Madras was clothed with legal authority to take decision not to continue some officers as they chose at their pleasure was a question which is independent of the provision made under clause (2) in respect of officers who were allowed to continue in service. With great respect, it seems to me that to say that all the rest of the officers barring those allowed to continue and for whom the safeguards cf Section 10(2) are ensured, must be deemed to have been validly and properly bundled out of office, would be begging the very question. It seems to me that there is no warrant for the interpretation of the word 'continues' as meaning only those officers who offered to continue and whose offer was accepted. In my view, its true connotation would include all those whose services, had not been validly terminated on the appointed day. If from that day an officer were asked to go and if that were not legally proper, then, he must be deemed to continue, and to him also, the safeguards of Clause (2) of the section would avail.

If there was any such intendment as to the termination of services underlying the Indian Independence Act, and when the Parliament was enacting this specific Section 10 with reference to the Secretary of State's services, one would have, expected it to give expression to such intention in clear and unambiguous language, namely, that it was open to the Dominion Government to retain only such officers as they were at pleasure inclined to and dismiss the rest. If the Parliament had intended to terminate the services in terms of the announcement of the Viceroy, it could have easily said so, as the Independence Act was passed about a month earlier than the transfer of power.

The learned Advocate-General also suggested in the course of his address that even the covenants relating to the Indian Civil Service would come to a termination on the transfer of authority from the Secretary of State to the Dominion Government. There is some such plea in paragraph 6 of the written statement. The covenant executed by the plaintiff has not been put into the evidence, though we were shown the covenant executed by a fellow victim. However, our attention was not drawn to any clause in that covenant that in the event of the Secretary of State getting himself rid of authority, the covenant should terminate or that the covenant was such that it would not be binding on the successor Government. On the other hand, we find that there is Section 15 in the Independence Act, reserving as against the Dominion Government all the 'rights and remedies which were in existence as against the Secretaryof State.

The result is that there is nothing in the Indian Independence Act to justify the contention that as from the appointed day the Secretary of State's services came to a termination or that there was an option given to the Government of India or to the Provisional Government to retain, according to their pleasure, which may be arbitrary or even capricious, only such personnel as they wanted and terminate the services of those whom they did not want. On the other hand, Section 8(2) of that Act made applicable to the new Dominion the provisions of the Government of India Act. 1935, subject of course to such adaptations and modifications of the Governor-General by order made under Section 9 of the Act. Under the Government of India Act, 1935, the security of the services was guaranteed. They were not liable to be terminated by the arbitrary will of the Governor-General or the Governor, who took the place of the Secretary of state.

35a . It is not the case of the Government in the present suit that the plaintiff's services were dispensed with in accordance with the provisions of that section. The learned Advocate-General, however, contended on the authority of ' : [1953]4SCR655 ', already cited, that the safeguards of that section have relation only to dismissal or removal from service, if it is inflicted as a punishment for misconduct on the part of the officer and not to the tenure of service as such. It will be seen that the amendment to that section does not take away the safeguards. Even under the amendment, Clauses (2) and (3) of that, section are retained, the amendment only giving effect to the devolution of authority from the Secretary of State to the Governor-General or the Governor as the case may be. Even accepting the contention that that section deals with the dismissal as a punishment, if protection is Afforded against dismissal conceived as a punishment, the greater the protection should come into play against arbitrary dismissal.

36. Then let us see if there is anything In the India (Provisional Constitution) Order, 1947, to support the contention of the Government that as from the appointed day, the officers of the Secretary of State's services dropped out of their offices or that an option was given to the Government of India or the Provincial Government to pick and choose at their pleasure which of the officers they would like to retain and which they would send out of office. The learned Advocate-General has not been able to draw our attention to any provision in that Order or in any other Order passed by the Governor-General under Section 9 (c) of the Independence Act to justify the position taken by the Government. Under that order, amendments have been made to the various sections of the Government of India Act, 1935. The safeguards of Clauses (2) and (3) of Section 240 are retained in the amendment. Further, there is Rule 7 of that Order to this effect:

'Subject to any general or special orders or arrangements affecting his case, any person who Immediately before the appointed day is holding any civil post under the Crown in connection with the affairs of the Governor-General or Governor-General in Council or of a Province other than Bengal or the Punjab shall, as from that day, be deemed to have been duly appointed to the corresponding post under the Crown in connection with the affairs of the Dominion of India or, as the case may be, of the Province.'

The general or special order referred to therein must be a valid and legal order; so also should be the arrangement and besides. It cannot be unilateral. The present plaintiff was a person who-immediately before the appointed day was holding a civil post under the Crown.

37. If so, he must be deemed to have beenduly appointed to the corresponding post underthe Crown in connection with the affairs of theDominion of India. The learned Advocate-General contended that this rule relates only toa post in its abstract conception, and not to thetenure of services, and that it was intended tovalidate the acts of a person who immediatelybefore the appointed day was holding the post.The words 'affecting his case' seem to be significant and to refer to the particular officer holding the post. It seems to me too much to saythat the plaintiff could not be deemed to beholding a civil post under the Crown immediatelybefore the appointed day, merely because hehappened to be on leave on that day. He wasnot removed from service prior to 15th August1947; and before he took leave, he was the Sub-Coliector, Dindigul. We were told during the arguments that he was a permanent Sub-Collector,It is therefore clear that immediately before theappointed day, he was holding the post of a Sub-Collector.

The expression 'service' is a more comprehensive conception; and a post is an individual office in such service or it may be independent of any such service. In order to say that a person is holding a post, it is not essential that he should-be actually discharging the functions pertaining to that post. In my view, the Sub-Collector on leave certainly held that post, though he was not attached to a particular station and was not actually discharging the duties of that post. Therefore, by reason of Rule 7 of that Order, if the plaintiff was holding the post of a Sub-Collector Immediately before the appointed day, he must be deemed to have been duly appointed to the corresponding post under the Crown in connection with the affairs of the Dominion of India. It follows that far from there being any automatic termination of the plaintiff's services as from the appointed day, he must be deemed to have been duly appointed to the corresponding post under the Dominion of India as from that day.

38. The result is this: The plaintiff was in the Secretary of State's services till 15th August 1947. That service was not terminated by the Secretary of State before that date or at any time. The only thins that happened was an intimation by the Government of Madras that as from that date his services would be terminated. Construed as an order of termination the Government of Madras was clearly incompetent to pass any such order on 7th August 1947. As I stated already, it was not an order In Itself termimating the plaintiff's services, but a mete intimation to him that his services would be terminated as from 15th August 1947. At no time was there a formal communication addressed to him either by the Provincial Government or by the Government of India terminating his service. After that date, his service could be terminated by the Government only alter the formalities of Section 240 are complied with, and that has not been done. On the other hand, this officer was condemned without even being heard, and the elementary rule of natural justice 'audi alteram partem was observed only in its breach.

The only other possibility by which the plain-tiff ceased to be in service with effect from 15th August 1947, can only be if the Secretary of State's services automatically came to an end with effect from 15th August 1947, or if the Government of India or the Provincial Government had the option to retain only such officers as they wanted and dismiss the rest. I am not convinced that there is any provision in the Independence Act or any of the Orders issued by the Governor-General under Section 9 of that Act or the Government of India Act, 1935, as amended or adanted, to Justify the theory of automatic termination or the legality of the option exercised against the plaintiff by the Government of Madras. The fact was that during the arguments, the learned Advocate-General had to abandon the defence of automatic termination of the services under Section 10(1) of the Independence Act and retreat to a new line of defence under Clause (2) of that section as confirmatory of the option exercised against the unwanted officers, but which proved to be equally vulnerable.

39. The other questions as to estoppel and maintainability of the suit are of subsidiary character; and on those questions as well as on the terms of the decree proposed to be made in this suit, I am in complete agreement with my learned brother.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //