<NAME>, J.

1. Now that we have had the document of 27th August 1897 translated, I think that the appellants being the tangals are clearly entitled to the money which represents the share assigned to the mosque by <NAME>. By that document he gave the tangals power to collect his share of the estate of <NAME>. They would, I apprehend, have been entitled to demand from the Collector the whole of <NAME>'s share in the particular fund, and having collected it to keep a third for the mosque. In my opinion this is not a case to which the doctrine of must can be applied, assuming that the doctrine is in force in this Presidency. I would reverse the award and remand the case for disposal according to law. <ORG> will be abide the result.

<NAME>, <NAME>

2. In this case one <NAME> is said to have held a kanom (usufructuary mortgage) over certain land for Rs. 100. On his death his rights as kanomdar are said to have passed to hits widow, his half-sister and his father's brother's son's son, <NAME>, as sharers under <ORG>, This <NAME> assigned one-third of his share by a registered deed of gift to the seventh and eighth defendants in the suit. The land was taken up under the Land Acquisition Act , and the seventh and eighth defendants claimed a share of the compensation paid.

3. The Subordinate Judge disallowed their claim on the ground that the gift was invalid under <ORG>, because the property given was not put into possession of the donees, and also because what was given was an undefined share and therefore invalid according to <ORG> by reason of "musha" or confusion. The questions raised for our determination are--

(1) Whether the rules of Muhammadan Law are applicable to the case? and (2) If so, whether the gift is invalid according to that law?

4. I am of opinion that the Muhammadan Law as such and of its own force has no application, but the rule which would be applicable to such a case under Muhammadan Law may be applied by us if it is in accordance with justice, equity and good conscience to do so, This is clear from Section 16 of the Madras Civil Courts Act, 1873, which enacts as follows:

Where, in any suit or proceeding, it is necessary for any Court under this Act to decide any question regarding succession, inheritance, marriage or caste, or any religious usage or institution;

(a) The Muhammadan Law in cases where the parties are Muhammadans, and the Hindu Law in cases where the parties are Hindus; or

(b) Any custom (if such there be) having the force of law and governing the parties or the property concerned, shall form the rule of decision unless such law or custom has by legislative enactment been altered or abolished;

(c) In cases where no specific rule exists the <ORG> shall act according to justice, equity and good conscience.

5. The validity of the gift in this case is not "a question regarding succession, inheritance, marriage or caste, or any religious usage or institution," and therefore the rules of Muhammadan Law with regard to gifts are not necessarily the rules by which we should decide the question. This view is in accordance with that of <ORG> of the Allahabad High Court in <NAME> v. <NAME> All. 775 at p. 815. In construing the Bengal Civil Courts Act, 1871, the terms of which are similar to those of the Madras Civil Courts Act, it was there held that "the Court is not bound to administer the Muhammadan Law in claims of pre-emption, but on grounds of equity that law has always been administered as between them in claims for pre-emption."

6. Again in the Full Bench case of Sheikh <NAME> v. <NAME> 4 B.L.R. 134 at p. 169, Sir <NAME>, C.J., says at page 169, "The Muhammadan Law is not the Law of British India, It is only the law so far as the laws of India have directed it to be observed. ...We are bound by Regulation IV of 1793, except so far as that law has been modified by Regulation VII of 1832." He then refers to Section 15 of the former Regulation which is, for our present purposes, similar in terms to the Bengal Civil Courts Act, 1871, and to Section 16 of the Madras Civil Courts Act. So also in the case of <NAME> v. <NAME> 6 M.H.C.R. 26 at p. 31 <NAME>, Ag. C.J., says: "The Muhammadan Law binds Muhammadans no more than others except in the matters to which it is declared applicable. It is then law because of its reception as one of our law sources in the matters to which it applies. Where, however, not so received, it can only be prevailing law because consistent with equity and good conscience".... "The question, therefore, resolves itself into whether it is consistent with equity and good conscience to import an exceptional rule opposed to the principle of law administered here." He then examined the ground on which the rule of Muhammadan law as to pre-emption sought to be enforced in that case was founded, and concluded I am of opinion that it is manifestly opposed to both (equity and good conscience), and that no such obligation in this Presidency binds a Muhammadan or any one else."

7. It was suggested in argument that Section 129 of the Transfer of Property Act by implication makes the Muhammadan Law applicable, but this is not so. Section 129 merely enacts that "nothing in this chapter (as to gifts) shall be deemed to affect any rule of Muhammadan Law." that is, if there is any rule of Muhammadan Law which is administered as law by the <ORG>, it shall not be affected by anything in this chapter. It will continue to be administered as law by the <ORG> just as if this chapter was not enacted. In considering this section of the Transfer of Property Act and also in considering the case law of other parts of India it is necessary to bear in mind that in the Civil <ORG> Acts of many Provinces the Muhammadan Law of gifts is specifically declared to be applicable in those Provinces as between Muhammadans (e.g., <ORG>, Section 5 , Act XX of 1875; Punjab, Section 5 , Act XII of 1878; Oudh, Section 3 , Act XVIII of 1876). In those Provinces the Muhammadan Law as to gifts applies by virtue of the Civil <ORG> Acts and is not affected by the rules of the Transfer of Property Act as to gifts. In other parts of India rules of Muhammadan Law, though not made applicable by legislation, have been adopted by the <ORG> as in accordance with equity and good conscience and have been consistently enforced, as such, between Muhammadans. Some of the rules of the Muhammadan law of pre-emption have, in this way, been adopted in Bengal and in the North West Provinces, though not in Madras. Such rules would apparently be unaffected by the Transfer of Property Act so long as the <ORG> continued to enforce them as being in accordance with equity and good conscience.

8. Turning now to the facts of the present case, I am of opinion that the gift is not invalid for either of the reasons assigned by the Subordinate Judge. The rule of <NAME> with regard to "musha" is defined by <ORG> as the rule "that a gift of an undivided share in a subject capable of division is not good because it would lead to confusion." We have not been referred to, nor am I aware of any case in which this Court has held that the rule as laid down in <NAME> is applicable in this Presidency. In the case of <NAME> v. Shaik Mira I.L.R. 13 Mad. 46, a father having a share in a house gave to his daughter a moiety of the share to which he was entitled. Objection was taken to the validity of the gift because of confusion or musha, but the Court held that the gift was not void for indefiniteness. I can see no reason why the present gift should be regarded as more indefinite or more likely to lead to confusion than the gift in that case. In <ORG> case already referred to <NAME> v. Hosseini Bibi L.R. 15 I.A. 81; I.L.R. 15 Calc. 684, at p. 701 their Lordships referring to the doctrine of musha observed that by <NAME> one of two sharers might give his share to the other and add "supposing there are three sharers what is there to prevent one of the three giving his share to either of the other two? Mr. <NAME> was asked what confusion that would introduce. Mr. <NAME> took refuge in the doctrine itself which he said was a very refined doctrine. To extend it to this case would be a refinement on a refinement amounting, in their Lordships' opinion, almost to a reductio ad absurdum" (page 701). The fact seems to be that the doctrine of musha is a vague and shadowy one. There is nothing to show that it has been adopted by the <ORG> in this Presidency, nor is there any reason in equity and good conscience why we should hold that the present gift is invalid because of indefiniteness.

9. With regard to the objection that possession was not given to the donees, I observe that the Muhammadan Law adopted by our Courts does not; require immediate possession to be given in all cases, and it may be doubted whether even the restricted rule as to possession is any longer adapted to modern requirements and whether the mode of transfer laid down as obligatory on Europeans and Hindus by Section 123 of the Transfer of Property Act and adopted by the parties in this case, viz., by registered instrument attested by two witnesses and signed by the donor, ought not in equity and good conscience to be held to be as efficacious as delivery of possession in the case of Muhammadans. The certainty, publicity and formality which attend delivery of possession, are at least as well secured by a registered and attested instrument, and no case has been quoted in which a transfer evidenced in this way has been held to be invalid in this Presidency for want of delivery of possession.

10. In the case of <CITATION> 5 M.H.C.R. 114 the document was apparently not registered and the donor continued to take the profits of the land until her death. How-over that may be, in the case of <NAME> v. Hosseini Bibi L.R. 15 I.A. 81 : I.L.R. 15 Calc. 684 already referred to, <ORG> held that it was not necessary for the donor to give immediate possession to the <ORG>; and that where the instrument entitles the donee to take possession and the donor has done all in his power to perfect the contemplated gift, no objection can be taken to the gift on the score of want of possession by the donor or because possession was not given to the donee at the time. In this case exhibit I gives the <ORG> authority to realize the property "from tenants and others who are in possession" by means of suits or by negotiation. The gift, therefore, cannot be regarded as invalid for want of possession in the donor or <ORG> at the time of transfer.

11. I would therefore set aside the award of the Subordinate Judge and remand the petition for disposal according to law.


PETITIONER: UNION OF INDIA & <ORG>. Vs. RESPONDENT: K.S. SUBRAMANIAN DATE OF JUDGMENT30/07/1976 BENCH: <NAME>, M. HAMEEDULLAH BENCH: <NAME>, M. HAMEEDULLAH RAY, A.N. (CJ) <NAME>, JASWANT CITATION: 1976 AIR 2433 1977 SCR (1) 87 1976 SCC (3) 677 CITATOR INFO : F 1982 SC1407 (26) R 1985 SC1293 (122) RF 1988 SC 501 (5) R 1988 SC1531 (46) F 1989 SC1335 (33) ACT: Central Civil Service (Classification, Control and Ap- peal) Rules, 1965 Scope of--Rules applicable only when disciplinary proceedings are taken. Constitution of India, 1950, Arts. 309, 310 and 311--scope of Art. 310 vis-a-vis, Arts. 309 and 311. Practice--Duty of <ORG> where there is conflict between the views expressed by Divisional benches and larger benches of <ORG>. HEADNOTE: Respondent was a welder in <ORG>. On his services being terminated, without stating any rea- son, he filed a suit for damages for illegal termination on the basis that he would have continued in service upto the age of 60 instead of being thrown out at the age of 41. <ORG> gave a decree for damages which was affirmed by the <ORG> on the ground. that the doctrine of post held during the pleasure of the President, contained in Art. 310 , does not authorise the termination without complying with the procedure prescribed by <ORG> (Classification, Control and Appeal) Rules, 1965, framed under Art. 309. Allowing the appeal to this Court, HELD: (1) The Rules deal principally with the procedure for disciplinary proceedings and penalties and appeals and reviews against orders passed under the rules. They are applicable if disciplinary proceedings had been taken against the respondent, but they do not make disciplinary proceedings incumbent or obligatory whenever the services of a person are terminated. In the present case there were no disciplinary proceedings against the respondent. [92 D-E] (2) The mere termination of the service. by an apparent- ly innocent order, of a Government servant in permanent service, in the sense that he is entitled to remain in service until he reaches the age of retirement, could be deemed, in a given case, to be a punishment. But, in that event, there had to be a finding on the rule or order under which the respondent was entitled to continue in service until he reached the age of 60. There is no reference to any such rule and there was no finding that any punishment was imposed upon him or that his services were terminated as a measure of punishment for any wrong done by him or for incompetence. [94 C; 93 <CITATION> AIR 1958 SC 36 @ 47 referred to. (3) Even assuming that the respondent was constructive- ly punished, there is no legal obligation to apply the Rules. The legal obligation to apply them to every case of punishment, flows from the provisions of Art. 311 and is confined to holders of posts covered by Art. 311. But the provisions of Art. 311 do not apply to the respondent since they do not apply to the holder of a post connected with defence. [94 E] L.R. Khurana v. Union of India  3 SCR 908 followed. (4) Terefore, when no disciplinary proceedings are instituted, the Rules will not at all apply, and there is no other rule dealing with the conditions under which the service, such as that of the respondent. may be terminated. Since there was no violation of any rule no question of a conflict between a rule framed under Art. 309 and the doc- trine of pleasure contained in Art. 310 , which applies to all Government servants including those in the services connected with defence, arises in the present case. [94 G] 88 (5) The <ORG> in dealing with the question consid- ered the view of <ORG> of this Court in two cases, merely quoted the views expressed by larger <NAME> of this Court, and then observed that these were insuffi- cient for deciding the point before it. The <ORG> did not act correctly in thus skirting the views expressed by larger <NAME> of this Court. The proper course for the <ORG> was to try to find out and follow the opinions expressed by the larger <NAME> in preference to those expressed by smaller <NAME>. This practice is followed even by this Court and has crystallized into a rule of law. If, however, the <ORG> was of opinion that the views expressed by larger <NAME> of this Court were not applica- ble to the facts of the present case it should have said so, giving reasons in support. [92 A-C] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 212 of 1975.

(Appeal by Special Leave from the Judgment and Order dated 26-6-1974 of <ORG> in A.S. No. 510/72).

<NAME>, <ORG> of India, <NAME> and <NAME> for the appellant. <NAME> for the respondent.

The Judgment of the Court was delivered by <ORG> J.--The <ORG> and the Commander, Officer- incharge, Naval Base, Cochin, are the appellants before us by grant of special leave against a judgment and decree of a Division Bench of <ORG>. The Division Bench had affirmed the decision of a learned subordinate Judge awarding Rs. 25,000/- as damages, together with inter- est @ 6% per annum, to the plaintiff-respondent for the illegal termination of the respondent's services. The plaintiff respondent was serving as a Welder, Grade II, in <ORG> at the Naval Base, Cochin, at the time of this allegedly illegal termination of service by an order of 25th October, 1968, of the <ORG>, <ORG>.

Special leave was granted on condition that the appel- lants Will bear the costs of the respondent in any event. The point of law sought to be canvassed before us is: Does the doctrine that a Central Govt. servant holds his post "at the pleasure of the President", contained in Article 310 of the Constitution, authorise the passing of an order of termination of services, without assigning any reason what- soever, of the holder of a post "connected with defence ?"

There is no finding anywhere that the services of the plaintiff respondent were terminated as a measure of pun- ishment for any wrong done by him or for incompetence, although, a perusal of the pleadings would show that the appellants denied the assertions of the plaintiff respondent that he was efficient and entitled to promotions as he had qualified for them by passing certain tests. The Subordinate Judge had awarded only Rs. 25,000-. out of a claim of Rs. 75,000/- made on the ground that, but for illegal termination of the service of the plaintiff-respond- ent, the-plaintiff would have continued in service upto the age of 60 years and duty promoted instead of being thrown out of service at the age of 41. The plaintiff respondent alleged that the termination of his service, without giving any reason whatsoever, was contrary to, rules made under Article 309. A glance at paragraph 4 of the plaint shows that the violation of rules relating to conduct of disciplinary proceedings was alleged by the petitioner. In paragraph 5 of the plaint, however, he alleged:

"As per the terms of appointment and the rules governing the service of the petitioner,, he is entitled normally to continue in service till the age of 60. If his service had not been terminated as per the impugned order, the petitioner would have been entitled to continue for a further period of 19 years and 8 months".

He proceeded to assert:

"Due to the illegal termination, the peti- tioner had lost a valuable right vested in him by virtue of his appointment and guaranteed by the Constitution of India and the rules framed thereun- der namely a right to continue in service for the full period of 19 years and 8 months and thus to gain a livelihood for himself and his family". A perusal of the judgment of <ORG> shows that the only point really considered by it was whether the pleasure of the President mentioned in Article 310 of the Constitution, can over-ride rules made under Article 309 of the Constitution.

<ORG> had explained away a passage cited from <CITATION> (1) by observing that it did not support the argument that rules made under Article 309 of the Constitution did not control the pleasure of the President, under Article.310 , which was to be subject to matters otherwise expressly provided in the Constitution. The passage so explained away runs follows :.

"If there is a specific provlsion in some part of the Constitution giving to a Government servant a tenure different from that provided for in Art. 310 , that Government servant is excluded from the operation of Art. 310. The said words refer, inter alia,, to Arts. 124, 148, 218 and 324 which provide that the Judges of <ORG>, the Auditor General, the Judges of <ORG> and the Chief Election Commissioner shall not be re- moved from their offices except in the manner laid down in those Articles. If the provisions of the Constitution specifically prescribing different tenures were excluded from Art. 310 , the purpose of that clause would be exhausted and thereafter the Article would be free from any other restrictive operation. In that event, Art. 309 and 310 should be read together, excluding the opening words in the latter Article, namely, "Except as expressly provided by this Constitution". Learned Counsel seeks to confine the operation of the opening words in Art. 309 to the provisions of the Constitution which empower other authorities to make rules relating to the conditions of service of certain classes of public servants:, namely Arts. 146(2), 148(5) and 229(2). That may:be so, but there is no reason why Art. 310. should (1) A.I.R. 1961 S.C. 751.

8--1003 SCI/76 be excluded therefrom. It follows that while Art. 310 provided for a tenure at pleasure of the President or the Governor, Art. 309 enables the legislature or the executive, as the case may be, to make any law or rule in regard, inter alia, to conditions of service without impinging upon the overriding power recognised under Art. 310".

<ORG> relied on <CITATION> .,(1) to hold that doctrine of office held at the pleasure of the President was subject to rules made under Article 309 of the Constitution, and pointed out that it was held, inter-alia, by <ORG> of this Court (at p. 42):

"A Government servant serving under <ORG> holds his office at the pleasure of the President as provided in Article 310 of the Consti- tution. But this "pleasure" doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Art.311 ". <ORG> also relied on <CITATION> ,(2) where the same Division Bench of this Court had held inter-alia (at p. 111 ):

" Article 310(1) of the Constitution declares that every person who is a member of Civil service of a <ORG> or holds any civil post in a <ORG> holds office during the pleasure of the Governor of a <ORG>. But the pleasure doctrine embodied therein is subject to the other provisions in the Constitu- tion. Two other Articles in the Constitution which cut down the width of the power given under Article 310 (1) are Articles 309 and 311. Article 309 provides that subject to the provisions of the Constitution acts of the appropriate <ORG> may regulate the, recruitment, and conditions of service of persons appointed, to public. services and posts in connection with the affairs of the <ORG> or of any <ORG>. Proviso to that Article says:

'Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the: case of services and posts in connection with the af- fairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate <ORG> under this article, and any rules so made shall have effect subject to the provisions of any such Act ."

<ORG> then referred to <CITATION> .,(3) a decision of 5 learned Judges of this Court, in which <NAME>., speaking for the Constitution Bench of this Court, (1) A.I.R. 1971 S.C. 40. (2)  (1) S.C.C. 108 at 111.

(3) A.I.R. 1973 S.C. 2641 at 2645.

while considering the power of the <ORG>. to create, continue, and abolish a post said (at p. 2645):

" Article 309 provides that subject to the. provisions of the Constitution, Acts of the appropriate <ORG> may regulate the recruit- ment and conditions of service of persons appoint- ed, to public services and posts in connection with the affairs of the <ORG> or of any <ORG>. There- fore, Acts in respect of terms and conditions of service of persons are contemplated. Such Acts of <ORG> must however be subject to the provi- sions of the Constitution. This attracts Article 310 (1). The proviso to Art. 309 makes it compe- tent to the President or such person as he may direct in the case of services and posts in connection with the affairs of the <ORG> and for the Governor of a <ORG> or such person as he may direct in the case of services and posts in con- nection with the affairs of the <ORG>, to make rules regulating the recruitment and the conditions of service of persons appointed,, to such services and posts under the <ORG> and the <ORG>. These Rules and the exercise of power conferred on the delegate: must be subject to Article 310. The result is. that Article 309 cannot impair or affect the pleasure of the' President or the Gover- nor therein specified. Article 309 is, there- fore, to be. read subject to Article 310". <ORG>, after citing the passage set out above, said: "We do not understand the above passage as suggesting that Article 310 cannot in any manner be controlled by Rules framed under Article 309".

After a consideration of decisions of this <ORG> in this manner it -expressed its views as follows:

"These cases, we think, sufficiently indicate that while it may be open to the PreSident or to the Governor to dismiss a civil servant at pleas- ure, if Rules have been framed under Article 309 of the Constitution to regulate the mode and manner of termination of service, these .have to be com- plied with. This, we think, is reasonable and understandable enough on first principles. If the untrammelled pleasure of the President has been subjected to Rules framed by the President himself in regard to the manner of termination of service, the pleasure must be subject to such Rules". <NAME> of <ORG> then re- corded its conclusion:

"We are therefore of the opinion that in the instant case, the Civil Services (Classification, Control and Appeal) Rules, having been framed under Article 309 of the Constitution, the same had to be followed before the respondent's service was terminated. The same not having been admittedly complied with, the finding of the' <ORG> below that the termination is illegal was correct and requires no interference. No arguments were addressed on the quantum of damages awarded".

We do not think that the difficulty before <ORG> could be resolved by it by following what it consid- ered to be the view of <ORG> of this .<ORG> in two cases and by merely quoting the views expressed by larger benches of this <ORG> and then observing that these were insufficient for deciding the point before <ORG>. It is true that in each of the cases cited before <ORG>, observations of this <ORG> occur in a con- text different from that of the case before us. But, we do not think that <ORG> acted correctly in skirting the views expressed by larger benches of this <ORG> in the manner in which it had done this. The proper course for <ORG>, in such a case, is to try to find out and follow the opinions expressed by larger benches of this <ORG> in preference to those expressed by smaller benches of the <ORG> That is the practice followed by this <ORG> itself. The practice has now crystallized into a rule of law de- clared by this <ORG>. If, however, <ORG> was of opinion that the views expressed by larger benches of this <ORG> were not applicable to the facts of the instant case it should have said so giving reasons supporting its point of view.

we have perused the Central Civil Service (Classifica- tion, Control and Appeal) Rules of 1965, (hereinafter re- ferred to as '1955 Rules') which deal principally with procedure for disciplinary proceedings and penalties and appeals and reviews against orders passed under the rules. There is no rule there dealing with the conditions under which a service such as that of the plaintiff respondent may be terminated. We fail to see any rule made under Article 309 of the Constitution which was violated by the impugned order of termination of service of the plaintiff-respondent. We do not consider ourselves called upon to. decide a ques- tion which has really not arisen in the case. before us. The 1965 Rules are applicable when disciplinary proceed- ings are taken. They do not make disciplinary proceedings under the rules incumbent or obligatory whenever the services of a person covered' by these rules are terminated. The obligation to follow the procedure for punishment laid down in the rules flows from the provisions of Article 311 of the Constitution. And, as the opening words of Arti- cle 310 show, the doctrine of office held at the pleasure of the' President does not apply to cases covered by Article

311. Rule 3 of the above mentioned rules begins. as follows:

"3. Application.--(l ) These rules shall apply to every Government servant including every civilian Government servant in the Defence Serv- ices, but shall not apply to-

(a) any railway servant, as defined in rule 102 of volume I of the Indian Railway Establishment Code,

(b) any member of <ORG>, (c) any person in casual employment,

(c) any person in casual employment,

(d) any person subject to discharge from service on less than one month's notice.

(e) any person for whom special provision is made, in respect of matters covered by these rules, by or under any law for the time being in force or by or under any agreement entered into by or with the, previous approval of the President before or after the commencement of these rules, in regard to matters covered by such special provisions;

(2) Notwithstanding anything contained in sub-rule (1), the President may by order exclude any class of Government servants from the operation of all or any of these rules.

(3) Notwithstanding anything contained in sub-rule (1), or the Indian Railway Establishment Code, these rules shall apply to every Government servant temporarily transferred to a Service or post coming within exception (a) or (e) in sub- rule (1 ), to whom, but for such transfer, these rules would apply.

(4) If any doubt arises-

(a) whether these rules or any of them apply to any person, or

(b) whether any person to whom these rules apply belongs to a particular service the matter shall be referred to the President, who shall decide the same".

Even if the parties were governed by these rules, because the plaintiff held a civil post in one of the Defence; Departments, yet there must be some violation of one of these rules, which were no doubt framed under Article 309 read with clause 5 of Article 148 of the Constitution, before any question of a conflict between a rule framed under Article 309 and the provisions of Article 310 could possibly arise. We fail to see such a conflict here. These rules merely lay down procedure for matters cov- ered by Article 31 l of the Constitution. There is no doubt that proceedings under Article 311 of the Constitution constitute an exception to the doctrine of pleasure con- tained in Article 310 of the Constitution. But, in the case before us, no question of any disciplinary proceedings has been discussed because it did not arise at all. There is no finding that any punishment was imposed upon the plaintiff-respondent. It may be that mere termination of service, when the plaintiff.respondent was holding a perma- nent post and entitled to continue in service until 60 years of age, may constitute punishment per seven when the termination of service is not meant as a punishment. But, in that event,, there had to be a finding on the rule or order under which the plaintiff was entitled to continue in serv- ice. until he reached the age of 60 years. <ORG> had cited no rule made under. Article 309 to show that there was any such provision.

<CITATION> (1) <NAME>, CJ., speaking for the majority of a Bench of five judges of this Court, said (at p. 47):

"It has already been said that where a person is appointed substantively to a permanent post in <ORG> service.

(1) A.I.R. 1958 S.C. 36 at 47.

he normally acquires a right to hold the post until under the rules, he attains the age of superannua- tion or is compulsorily retired and in the absence of a contract, express or implied, or a service rule,. he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or. other disqualifications and appropriate proceedings are taken under the service rules read with Art. 311 (2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant's rights and brings about a premature end of his employ- ment".

The propositions laid down in <NAME>'s case (supra) by this, <ORG> mean that, unless a legally justifiable ground is made out for the termination of the service of a Govern- ment servant. in permanent service, in the sense that he is entitled to remain in service until he' reaches the age of retirement, he could be deemed in a given case to be pun- ished by an apparently innocent order of termination of service. If, however, the respondent belonged to a class of government servants the tenure or conditions of whose serv- ice was subject to the over-riding and unqualified sway of the power to terminate his services at will, by reason of Article 310(1) of the Constitution, we doubt whether he could claim to be a "permanent" servant, who could continue, as of right, in service until he reaches the age of super- annuation. At any rate, he could not be a "permanent" Government servant of the same class as one protected by Article 311.

Even if we were to hold that the plaintiff-respondent was constructively punished, the provisions of Article 311 , unfortunately, do not apply to such a <ORG> servant as the respondent was. Whereas the power contained in Article 310 governs all <ORG> servants, including those in the services connected with defence, the benefits of Article 311 , which impose limitations on the exercise of this power in cases of punishment, do not extend to those who hold posts "connected with defence". Constitution Bench of this Court has held, after a review of relevant authorities, this to be the position of the. holder of a post such as that of the plaintiff-respondent in L. R: <CITATION> . (1) As the plaintiff-respondent was not entitled to the protection of Article 311 , the only effect of the 1965 Rules upon his case is that they could be applied if disci- plinary proceedings had been taken against him as the holder of a post "connected with defence". In other eases of such servants,. where no such disciplinary proceedings are instituted (and none were started against the plaintiff-respondent), the 1965 Rules, governing procedure for. punishments to be imposed, will not apply at all. There is no legal obligation to apply those rules here. The legal obligation to apply them to every case of punish- ment, flowing from Article 311 , is confined to holders of posts covered by Article 311. On this question, we are bound by the decision of a bench of five learned Judges of this Court in <NAME>'s case (supra). (1)  3 S.C.R. 908.

We were asked to import the obligation to apply the procedure prescribed by Article 311 to a case such as the one before us by invoking the aids of Articles 14 and 16. Apart from the fact that these .Articles could not be in- voked against a discrimination made by Constitutional provi- sions, no such case was set up earlier. We cannot permit it at this stage.

The only ground on which the respondent had assailed the order of termination of his service was non-compliance of 1965 Rules, which meant' that he claimed the protection of Article 311 of the Constitution. But for the reasons given above, this protection is not available to him. Therefore, this appeal must succeed.

Consequently, we allow this appeal, set aside the judgment and decree of <ORG> and ,dismiss the plaintiff's suit. But: in the circumstances of the case, the appellant will, in keeping with the undertaking given at the time of grant of special leave, bear the costs of both sides throughout.

Appeal allowed.

V.P.S.


PETITIONER: THE STATE OF BIHAR Vs. RESPONDENT: <NAME> DATE OF JUDGMENT: 11/02/1954 BENCH: <NAME>, MEHAR CHAND (CJ) BENCH: <NAME>, MEHAR CHAND (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN BOSE, VIVIAN HASAN, GHULAM CITATION: 1954 AIR 245 1954 SCR 786 CITATOR INFO : D 1954 SC 493 (6) F 1955 SC 800 (6,9,12) RF 1958 SC 36 (5,9) RF 1958 SC 325 (4) RF 1961 SC 751 (14) RF 1962 SC 8 (4) RF 1962 SC 933 (15) R 1964 SC 72 (4) R 1964 SC 600 (22) R 1969 SC1302 (13) R 1977 SC1466 (24) F 1985 SC1416 (52) R 1991 SC2176 (1,32) ACT: Civil servant--Wrongful dismissal--Suit for recovery of arrears of salary--Whether competent--Rule of English law--Civil servant--Holding office at the pleasure of <ORG>--Whether applicable in India. HEADNOTE: Held, that the rule of English law that a civil servant cannot' maintain a suit against the <ORG> or against the <ORG> for the 787 recovery of arrears of salary does not prevail in India and it has been negatived by the provisions of the statute law in India. Section 240 of the <ORG> of India Act, 1935, places restrictions and limitations on the exercise of the pleasure of the <ORG> and these restrictions must be given effect to. They are imperative and mandatory. Therefore whenever there is a breach of restrictions imposed by the statute' by the <ORG> or the <ORG> the matter is justiciable and the aggrieved party is entitled to suitable relief at the hands of the court. <ORG> servants are entitled to relief like any other person under the ordinary law, and that relief must be regulated by the Code of Civil Procedure. <CITATION> ( F.C.R. 89) approved. <CITATION> ( L.R. 75 I.A. 225) distinguished. JUDGMENT:

CIVIL APPELATE JURISDICTION: Civil Appeal No. 70 of 1952.

Appeal by special leave from the Judgment and Decree dated the 5th May, 1949, of <ORG> at Patna (<NAME> and <NAME>) in Appeal from Appellate Decree No. 2091 of 1946.

<NAME>, Solicitor-General far India (<NAME> and <NAME>, with him) for the appellant.

8. <NAME> (<NAME>, with him) for the respondent.

1954. February 11. The Judgment of the Court was delivered by <NAME> is an appeal by the State of Bihar against the judgment of <ORG> at Patna whereby <ORG> passed a decree for arrears of salary of the respondent against the State from the 30th July, 1940, up to the date of the institution of the suit. The undisputed facts of the case are:That the respondent was appointed a Sub-Inspector of Police by the Inspector-General of Police, Bihar and Orissa, in January, 1920. In the year 1937 departmental proceedings were taken against him and he was found guilty of cowardice and of not preparing search lists and was punished by demotion for ten years. On appeal; the Deputy Inspector-General of Police held that the respondent was guilty of cowardice but acquitted him of the other charge. By an order dated the 23rd July, 1940, which was communicated to the respondent on the 29th of July, 1940, the Deputy Inspector-General of Police having found him guilty of cowardice made an order dismissing him from service. Further appeals by the respondent to the Inspector- General of Police and to the Governor of Bihar were unsuccessful.

Aggrieved by the departmental action taken against him, the respondent filed the suit out of which this appeal arises in the court of additional subordinate judge against the <ORG> of Bihar for a declaration that the order of the Deputy Inspector-General of Police dismissing him from service was illegal and void and that he should be regarded as continuing in office. He also claimed a sum of Rs. 4,241 from 30th July, 1940, to the date of the suit on account of arrears of salary. The <ORG> contested the claim and pleaded that the plaintiff held his service at the pleasure of the <ORG>, and could not call in question the grounds or the reasons which led to his dismissal, and that in any case he had been reinstated in service from the 30th of July, 1940, and the order of dismissal therefore was no longer operative, and the suit had thus become infructuous. The additional subordinate judge by his judgment dated the 2nd February, 1945, dismissed the suit on the finding that the <ORG> having reinstated the respondent he had no cause of action. As regards the arrears of salary, it was held that the claim to it could only be made according to the procedure prescribed under rule 95 of section 4-of Chapter IV of Bihar and Orissa Service Code. This decision was confirmed in appeal by the additional district judge. On further appeal <ORG> reversed these decisions and decreed the claim for arrears of salary in the sum of Rs. 3,099-12-0. It was held that rule 95 of the Bihar and Orissa Service Code had no application because the respondent had never been dismissed within the meaning of that rule. It was further held that the plaintiff was entitled to maintain the suit for arrears of pay in view of the decision of <ORG> in <NAME> case(1) the correctness o15 which was not affected by decisions of <ORG> in cases of <NAME>.

The principal questions involved in this appeal are: (1) Whether <ORG> correctly held that rule 95 above mentioned had no application to the case ? (2) Whether a suit 15or arrears of salary by a civil servant is competent in a civil court ?

Rule 95 of the Bihar and Orissa Service Code provides: Rule 95 "When the suspension of a Government servant as a penalty for misconduct is, upon reconsideration or appeal, held to have been unjustiliable or not wholly justifiable; or when a Government servant who has been dismissed or removed, or suspended pending enquiry into alleged misconduct is reinstated;

the revising or appellate authority may grant to him for the period of his absence from duty

(a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension; or

(b) if otherwise, such proportion of such pay and allowances as the revising or appellate authority may direct."

The provisions of this rule enable an appellate or revising authority, when making an order of reinstatement to grant the reliefs mentioned in the rule. Obviously these provisions have no application to the situation that arose in the present case. The respondent here was dismissed by the Deputy Inspector-General of Police, though he was appointed by the Inspector-General of Police. This was clearly contrary to the (1) [1947] F.C.R. 89.

(2) 75 I.A. 225.

(3) 75 I.A. 343.

provisions of section 240 (3) of the <ORG> of India Act, 1935, which provides that no person shall be dismissed from the service of His Majesty by an authority subordinate to that by which he was appointed. But nevertheless the appeal-preferred by him to the Inspector-General of Police was rejected and his petition to <ORG> met with the same fate, so that he was never reinstated by the order of any revising or appellate authority. It was only after the present suit was filed that the <ORG> reinstated him. This was no proceeding in revision or appeal. In these circumstances the enabling provisions of rule 95 had no application whatsoever to the case of the plaintiff. What happened subsequently is a matter wholly outside the contemplation of the rule. After the institution of the suit, the Chief Secretary to the <ORG> of Bihar realising the untenability of the <ORG>'s position wrote to the Inspector-General of Police that the order of dismissal should be treated as null and void and that the respondent should be reinstated. Thus the reinstatement of the plaintiff the telegram of the 30th December, 1943, was not made at the instance of any of the authorities mentioned in the rule in exercise of their jurisdiction, appellate, or revisional, but was made at the instance of the defendant in the suit who had realised that it was not possible to defend the order of dismissal. For the reasons given above we are of the opinion that <ORG> was right in holding that rule 95 had no application to the facts and circumstances of this case and that the enabling provisions of this rule did not operate as a bar to the plaintiff's action.

The next contention of the learned Solicitor-General that a suit by a public servant against the <ORG> for recovery of arrears of salary cannot be maintained in a civil court is again, in our opinion, without substance. We think that the matter is covered by the decision of <ORG> in <NAME> case(1) with which we find ourselves in respectful agreement. In that case the learned Attorney General had argued with great force all the points that were (1) [1947] F.C.R. 89.

urged in this appeal before us by the learned SolicitorGeneral and were dealt with by <ORG> in great detail. It was there held that the prerogative right of the <ORG> to dismiss its servants at will having been given statutory form in sub-section (1)of section 240 of the Government of India Act, 1935, it could only be exercised subject to the limitations imposed by the remaining sub-sections of that section and that it must follow as a necessary consequence that if any of those limitations was 'contravened the public servant concerned had a right to maintain an action against the <ORG> for appropriate relief and that there was no warrant for the proposition that that relief must be limited to a declaration and should not go beyond it. It was further held that even if apart from the prerogative of the <ORG> to terminate the service of any of its servant at will, the further prerogative could be invoked that no servant of the <ORG> could maintain an action against the <ORG> to recover arrears of pay even after the pay had been earned and had become due and that the prerogatives of the <ORG> had been preserved in the case of India by section 2 of the Constitution Act, it must be presumed that this further prerogative had been abandoned in the case of India by the provisions of' the Code of Civil Procedure and that it was not possible to subscribe to the proposition that while a creditor of a servant of the <ORG> was entitled as of right to compel the <ORG> to pay to him a substantial portion of the salary of such servant in satisfaction of a decree obtained against him the servant himself had no such right. Mr. Justice <NAME>, as he then was, in a separate but concurring judgment, negatived the contention of the Attorney-General in these terms:

"The question whether the law in England and India is the same on this point should be further considered having regard particularly to the provisions found in the Civil Procedure Code. In this connection, section 60(1) and clauses (i) and (j) of the proviso, and explanation (2) should be noted. Under section 60 all property belonging to the judgment debtor is liable to be attached. In stating the particulars of what may not be attached and sold, exemption to a limited extent is given in respect of the salary of a public servant. These provisions of the Code of Civil Procedure were not noticed in <CITATION> for India(1 ), as the application was made in England and the Civil Procedure Code of 1908 did not apply there. The provisions of section 60 of the Civil Procedure Code give a right to the creditor to attach the salary of a servant of the <ORG>. There can be no dispute about that. If the contention of the appellant was accepted, the result will be that while the civil servant cannot recover the money in a suit against the <ORG>, his ,creditor can recover the same in execution of a decree against the civil servant. This right of the creditor to receive money in that manner has been recognised in innumerable decisions of all <ORG>. There were similar provisions in the Civil Procedure Code of 1882 also. By reason of section 292 of the Constitution Act, the Code of Civil Procedure, 1908, continues in force, in spite of the repeal of the Government of India Act of 1915. Could <ORG>' in enacting section 240 and being deemed aware of the provisions of section 60 of the Civil Procedure Code, have thought it proper to give this privilege to a creditor, while denying it to the officer himself ? To hold' so, the words of section 240 of the Constitution Act will have to be unduly and unnaturally strained. Moreover in explanation (2) of section 60 the word 'salary' is defined. In the proviso to section 60 clause (i) the word 'salary' is used as applicable to private employees and to Government servants also. The word 'salary' in respect of a private employee must mean an enforceable right to receive the periodical payments mentioned in the explanation. In that connection it is not used in the sense of a bounty. It will therefore be improper to give the same word, when used with regard to a civil servant under the <ORG> a different meaning in the same clause. It seems to me therefore that <ORG> has not accepted the principle that the <ORG> is not liable to pay its servant salary (1) (1943) P. 68.

for the period he was in service, as applicable to British India or as forming part of the doctrine that service under the <ORG> is at His Majesty's pleasure."

The learned Solicitor-General contended that the decision in <NAME> case(1), was no longer good law and should be deemed to have been dissented from and overruled by the decision of their Lordships of <ORG> in <NAME> case(2), and that in any event the view expressed in that decision should be preferred to the view expressed in <NAME> case. We are unable to uphold this contention. It seems that during the arguments in <NAME>'s case attention of their Lordships was not drawn to the decision of <ORG> in <NAME> case because the point was not directly involved therein. In that case no claim had been made by the plaintiff for arrears of his pay. The plaintiff had sued for a declaration simpliciter that the order of his removal from the office was illegal and that he was still a member of <ORG>. <ORG> granted that declaration. <ORG>, on appeal, substituted for the declaration made by <ORG> a declaration that the plaintiff had been wrongfully dismissed. The case was remitted to <ORG> with a direction to take such action as it thought necessary in regard to any application by the plaintiff for leave to amend the claim for recovery of damages. On appeal to <ORG> the decree and the order made by <ORG> was modified and their Lordships held that in their opinion the declaration should be varied so as to declare that the purported dismissal of the respondent on the 10th August, 1940, was void and inoperative and the respondent remained a member of <ORG> at the date of the institution of the suit, 20th of June, 1942. The High Commissioner for India had also appealed against the order of <ORG> remitting the case to <ORG> for amendment of the plaint. The plaintiff did not want to maintain the order of <ORG> to remit, before the (1) [1947] F.C.R. 89 (2) 75 I.A. 225.

14--95 S.C.I./59 Privy Council. He however urged that he was entitled to recover in the suit his arrears of pay from the date of the purported order of dismissal up to the date of action, though this was not one of the reliefs claimed by him in the suit at all. This relief that was claimed by him before the <ORG> was negatived by their Lordships on the ground that no action in tort could lie against the <ORG> and that such an action must either be based on contract or conferred by statute. Their Lordships approved of the judgment of Lord <NAME> in the Scottish case of <NAME> v. The Admiralty(1), in which that learned Judge laid down the rule in the following terms after reviewing various authorities:

"These authorities deal only with the power of the <ORG> to dismiss a public servant, but they appear to me to establish conclusively certain important points. The first is that the terms of service of a public servant are subject to certain qualifications dictated by public policy, no matter to what service the servant may belong, whether it be naval, military or civil, and no matter what position he holds in the service, whether exalted or humble. It is enough that the servant is a public servant, and that public policy, no matter on what ground it is based, demands the qualification. The next is that these qualifications are to be implied in the engagement of a public servant, no matter whether they have been referred to when the engagement was made or not. If these conclusions are justified by the authorities to which I have referred, then it would seem to follow that the rule based on public policy which has been enforced against military servants of the <ORG>, and which prevents such servants suing the <ORG> for their pay on the assumption that their only claim is on the bounty of the <ORG> and not for a contractual debt, must equally apply to every public servant. It also follows that this qualification must be read, as an implied condition, into every contract between the <ORG> and a public servant, with the effect that, in terms of their contract, they have no right to their remuneration which can be (1) [1926] S. C. 842.

enforced in a civil court of justice, and that their only remedy under their contract lies in an appeal of an official or political kind'."

The observations made in <NAME> v. The <ORG>(1), which is a Scottish case, could not have been made if in the law of that country there were provisions similar to the provisions made in various sections of the Code of Civil Procedure referred to by <ORG> in <NAME> case(2). It was further urged that the same view was taken by <NAME> in<NAME> v. <NAME> and the High Commissioner for India(a).There the question for consideration was whether the sterling overseas pay of an Indian civil servant was a debt owing and accruing within the meaning of rule 1 of Order XLV of the Rules of <ORG> and which could be attached in satisfaction of an order for the payment of alimony. The real point for decision in that case was whether the whole or any portion of the salary of a member of <ORG> was liable to attachment in England in satisfaction of the judgment debt. It appears that the attention of the learned Judge was not invited to the provisions of section 60 and other relevant provisions of the Code of Civil Procedure and the learned Judge applied the dictum of Lord <NAME> in <NAME> v. The <ORG>( 1 ), to the case of a civil servant from India. As the application was made in England and the Civil Procedure Code did not apply there, the provisions of the Code were not noticed in that case. We are therefore of the opinion that the rule laid down by their Lordships of <ORG> in <NAME> case(4), without a consideration of the provisions of the Code of Civil Procedure relevant to the inquiry and without a consideration of the reasoning of <ORG> in <NAME> case(2), cannot be treated, particularly because the matter was not directly involved in the suit, as the final word on the subject. We are in no way bound by the decision given either in <NAME> case(2 ), or by the (1)  S.C. 843. (3)  P. 68.

(2) [1947] F. C.R. 89. (4) 75 I.A. 225.

decision given by <ORG> in <NAME> case (1). But on a consideration of the reasons given in the two judgments we think that the rule of English law that a,civil servant cannot maintain a suit against the State or against the <ORG> for the recovery of arrears of salary does not prevail in this country and that it has been negatived by the provisions of the statute law in India. Reliance was also placed by the learned Solicitor- General on the decision of <ORG> in <NAME> v. North West Frontier Province(2). In that case <NAME> having been appointed a Sub-Inspector of Police posted in the North West Frontier Province by the Inspector-General of Police of the Province was subsequently dismissed by the Deputy Inspector-General of Police. Failing to get relief-by departmental proceedings he instituted a suit in <ORG>, Peshawar. The subordinate judge dismissed the suit as being unsustainable. This decision was upheld by <ORG>. <ORG> held that the <ORG> below were not justified in dismissing the suit, that the plaintiff was at least entitled to a declaration that the order of dismissal passed against him was void. That court accordingly set aside the decree of the Judicial Commissioner and remitted the case with a declaration that there shall be substituted for the decree appealed against a declaration in the terms above stated, with such further directions as the circumstances of the case may require in the light of the observations of their judgment. The Province appealed to <ORG> against the decision of <ORG>. It was held by the <ORG> in the first instance allowing the appeal of the North West Frontier 'Province and reversing the decision of <ORG> of India, that the North West Frontier Province Police Rules, 1937, had become operative in 1938 at some date before April 25, 1938, when the respondent was dismissed, and that rule 16 (1)was a valid rule made under the authority conferred on the (1) 75 I.A. 225.

(2) [1941] F.C.R. 37.

appellant by section 243 of the Government of India Act, 1935, and that the respondent's suit was rightly dismissed, but subsequently on the petition of the respondent asking the <ORG> to reconsider' their decision on the ground that it had been ascertained that the Police Rules of 1937 were in fact printed and published on April 29, 1938, that was, four days after the date of his dismissal, the <ORG> heard the appeal further, when the respondent's allegation was admitted and, :applying the reasoning in their previously delivered judgment, the <ORG> reversed their former decision and affirmed the judgment of <ORG> which had held that' the respondent's dismissal was void and :inoperative. During the arguments before the Privy ,<ORG> reference was made to section 60 of the Code of-Civil Procedure and to the decision of the <ORG> 'Court in <NAME> case(1), and it was also noticed that following on the remit of the case to the Judicial. Commissioner by the order of <ORG>, dated December 4, 1941, the respondent had ,obtained a decree for payment of Rs. 2,283 against the appellant in respect of arrears of pay from the date of dismissal to the institution of the suit. When the appeal came before the <ORG> for further hearing their Lordships on the 6th August, 1948, caused a letter to 'be addressed to the solicitor representing the appellant, informing him that their Lordships now proposed 'humbly to advise His Majesty that the appeal should 'be dismissed, and stating that the order as to costs would not be varied. The letter pointed out that if this :advice were tendered, and if His Majesty were pleased to accept it, the effect would be that the declaratory 'judgment of <ORG> would stand. Finally, 'the letter referred to the award of Rs. 2,283 to the respondent by <ORG> 'which, according to a submission made by the appellant's counsel, was open to challenge, and inquired whether the appellant wished to have an opportunity ,of satisfying their Lordships that the point was open, and of being heard on it. By their Lordships' direction a copy of this letter was sent to the respondent.

(1)[1947] F.C.R. 89.

An intimation was received by <ORG> that the appellant did not wish to offer any further arguments on the case. The respondent also did not desire an opportunity of arguing that he-should now beawarded arrears of pay from the date of the institution of the suit onwards. In these circumstances the Board refused to deal further with the matter and advised His Majesty that the declaratory judgment of <ORG> be restored and proceeded to observe that it would be open to the respondent to pursue any remedy which flows from that declaratory judgment in an appropriate court. Their Lordships concluded the judgment with the following observations :-

"Their Lordships must not be understood, however, as expressing an opinion that the respondent was entitled as of right to recover the sum of Rs. 2,283 which was awarded to him, or that he has any claim to a further sum in respect of arrears of pay. It is unnecessary, owing to the very proper attitude of the appellant, to express any view as to the former question, and the latter question does not arise in this appeal which is from the decision of <ORG>. If that decision is affirmed the respondent who did not himself enter an appeal, cannot now ask for anything more."

It is thus clear that in express terms in this decision their Lordships declined to give any opinion on the question whether the respondent was entitled as of right to recover arrears of pay awarded to him by the" Judicial Commissioner, in spite of the circumstance that their attention had been drawn to the decision of <ORG> in <NAME> case(1). This decision therefore cannot be said to support the view contended for by the learned Solicitor-General. On the other hand, it must be assumed that in spite of their decision in <NAME> case(1), their Lordships in this case, the judgment in which was delivered subsequent to the decision in 1. M. Lalls case(2), on November 4, 1948, did not reaffirm the propositions (1) [1947] F.C.R. 89.

(2) 75 I.A. 225.

laid down in that case but preferred to express no opinion on the point.

It was suggested that the true view to take is that when the statute says that the office is to be held at pleasure, it means "at pleasure", and no-rules or regulations can alter or modify that; nor can section 60 of the Code of Civil Procedure, enacted by a subordinate legislature be used to construe an Act of a superior legislature. It was further suggested that some meaning must be given to the words "holds office during His Majesty's pleasure" as these words cannot be ignored and that they bear the meaning given to them by <ORG> in <NAME> case (1).

In our judgment, these suggestions are based on a misconception of the scope of this expression. The expression concerns itself with the tenure of office of the civil servant and it is not implicit in it that a civil servant serves the <ORG> ex grati or that his salary is in the nature of a bounty. It has again no relation or connection with the question whether an action can be filed to recover arrears of salary against the <ORG>. The origin of the two rules is different and they operate on two different fields.

The rule that a civil servant holds office at the pleasure of the <ORG> 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 <ORG> 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 Fraser's Constitutional Law, page 126; Chalmer's Constitutional Law, page 186; <NAME> v. <NAME> (2); <NAME> v. The Queen(3) ].

This rule of English law has not been fully adopted in section 240 . Section 240 itself places restrictions (1) 75 I.A. 225. (2)  A.C. 229, 234. (3)  Q.B. 116.

and limitations on the exercise of that pleasure and those restrictions must be given effect to. They are imperative and mandatory. It follows therefore that whenever there is a breach of restrictions imposed by the statute by the <ORG> or the <ORG> the matter is justiciable and the party aggrieved is entitled to suitable relief at the hands of the court. As pointed out earlier in this judgment, there is no warrant for the proposition that the relief must be limited to the declaration and cannot go beyond it. To the extent that the rule that <ORG> servants hold office during pleasure has been departed from by the statute, the <ORG> servants are entitled to relief like any other person under the ordinary law, and that relief therefore must be regulated by the Code of Civil Procedure. Section 292 of the <ORG> of India Act, 1935, provides that the law in force in British India immediately before the commencement of the Act shall continue in force until altered, repealed or amended by a competent legislature. Sections 100 to 104 of the <ORG> of India Act. 1935, confer legislative powers on the different legislatures in the country. Item 4 of the concurrent list in the Seventh Schedule reads thus: "Civil Procedure and all matters included in the Code of Civil Procedure, at the date of the passing of this Act." It is clear therefore that the Indian Legislatures were conferred by the <ORG> of India Act, 1935, power to regulate the procedure in regard to actions against the Grown and to make provision for reliefs that could be granted in such actions. These provisions of the <ORG> of India Act, 1935, stand by themselves independently of what is contained in section 240 ,and therefore no question arises that section 60 of the Code of Civil Procedure which has the sanction of the <ORG> of India Act, 1935, itself is in status lower than the rule laid down in section 240 .

The rules of English law that the <ORG> cannot be sued by a civil servant for money or salary or for compensation has its origin in the feudal theory that the <ORG> cannot be sued by its vassals or subjects in its own courts. From this theory the common law lawyers in England deduced two rules, namely, (1) that the King can do no wrong, and (2) that as a matter of procedure no action can lie in the King's courts against the <ORG>. (See Ridge's Constitutional Law, eighth edition, page 295, and Fraser's Constitutional Law, page 164). The subject, in this situation, could only proceed by way of a petition of right which required the previous permission of the <ORG>. Permission was given by a fiat justitia issued by the <ORG>. It was not in practice refused to a petitioner who had any shadow of a claim, so that probably the disadvantages of this form of procedure were more theoretical that substantial. Petitions of right and various other special forms of English procedure applicable exclusively to actions by and against the <ORG> were abolished by the <ORG> Proceedings Act, 1947, which provides that in future claims against the <ORG> might be enforced as of right and without the fiat of His Majesty, and that they should be enforceable by ordinary procedure in accordance with the rules of <ORG> or <ORG> as the case might be. Arrears of salary were being actually recovered by the procedure of petition of right in England. '[See <NAME> v. <NAME> (1)]- There the judgment resulted in favour of the suppliant. The claim was in respect of the amount of salary due to him as Master of <ORG> in Ireland. (Robertson's Civil Proceedings by or against the <ORG>, page 338).

In India, from the earliest times, the mode of procedure to proceed against the Crown has been laid down in the Code of Civil Procedure and the procedure of petition of right was never adopted in this country, and the same seems to have been the rule in Australia and other Colonies. Section 56 of the Judiciary Act, 1903, relating to the Commonwealth of Australia provides:

"Any person making any claim against the Commonwealth, whether in contract or in tort, may respect of the claim bring a suit against the (1) [1869] Times News, May 29.

Commonwealth in <ORG> or in <ORG> in which the claim arose."

Under the New South Wales Act, 39 Vict. No. 38, <ORG> is liable to be sued in an action of tort as well as in contract. Section 65 of the <ORG> of India Act, 1858, conferred the right of suit against the <ORG>. It provided that "all persons and bodies politic shall and may have and take the same suits, remedies and proceedings legal and equitable, against the Secretary of <ORG> in <ORG> as they could have done against the said company" (<ORG>). This was replaced by section 32 of the <ORG> of India Act, 1915. Sub-section (2) of that section ran as follows :--

"Every person shall have the same remedies against the Secretary of <ORG> in <ORG> as he might have had against <ORG> if the Government of India Act, 1858, and this Act had not been passed."

This was replaced by section 176(1)of the Government of India Act, 1935, which substantially reproduced these provisions. From these provisions it is clear that the <ORG> in India was liable to be sued in respect of acts, which in England could be enforced only by a petition of right. As regards torts of its servants in exercise of sovereign powers, the company was not, and the <ORG> in India was not, liable unless the act had been ordered or ratified by it. Be that as it may, that rule has no application to the case of arrears of salary earned by a public servant for the period that he was actually in office. The present claim is not based on tort but is based on quantum meruit or contract and the court is entitled to give relief to him. The Code of Civil Procedure from 1859 right up to 1908 has prescribed 'the procedure for all kinds of suits and section 60 and the provision of Order XXI substantially stand the same as they were in 1859 and those provisions have received recognition in all the Government of India Acts that have been passed since the year 1858. The salary of its civil servants in the hands of the <ORG> has been made subject to the writ of civil court. It can be seized in execution of a decree attached. It is thus difficult to see on what grounds the claim that the <ORG> cannot be sued for arrears of salary directly by the civil servant, though his creditor can take it, can be based or substained. What could be claimed in England by a petition of right can be claimed in this country by ordinary process. For the reasons given above we are of the opinion that this appeal is without force and we accordingly dismiss it with, costs.

Appeal dismissed.

Agent for the appellant: <NAME>.

Agent for the respondent: <NAME>.