P L D 1965 Supreme Court 208 (PLP)

CORNELIUS, C. J.‑This is an appeal, by special leave granted to the appellant Abdul Majid Sheikh, against the dismissal of a petition under Article 98 of the Constitution, which the appellant had moved in the High Court to call in question an order of the 29th August 1963 giving him 14 days' notice of discharge from the post of Senior Scientific Officer‑in‑charge, Pakistan Naval Dockyard Laboratory at Karachi. The appellant claimed to be a Civilian Gazetted Officer, Class 1, his salary scale at the relevant time being Rs.1,000‑25‑1,250, with a special pay of Rs.150. The grounds upon which the order of discharge was challenged were‑ (a) the petitioner was holding a civil post in connection with the affairs of the Centre which was a permanent post and his appointment thereto being not merely temporary in character, his services could not be terminated by 14 days' notice without cause shown, but only in compliance with Article 177 of the Constitution; (b) that his services could not be terminated, under the Rules applicable to him, without a charge being preferred and an opportunity being given of defence; (c) that there being an allegation of misconduct lying at the base of the action, it was necessary to comply with the above procedure; (d) that the action. of removal was taken mala fide for extraneous reasons; and (e) that being a Class I Officer, he could only have been dismissed by the President of Pakistan. The High Court dismissed the petition on a single ground, namely, that the service of the petitioner in the post in question was expressly stated to be temporary, therefore the fact that he was to continue in the post for an indefinite period would not change the nature of the employment so as to make it permanent, and consequently, the petitioner was not entitled to the protection of Article 177 and his case fell to be treated under Article 179 of the Constitution which reads as follows: "179. (1) Subject to this Constitution and law, the President in relation to the affairs of the Centre, and the Governor of a Province, in relation to the affairs of a Province, may authorize the temporary employment of persons in the service of Pakistan and may make rules for regulating such temporary employment. (2) The preceding Articles of this Chapter (other than Article 174) do not apply to or in relation to the temporary employment of persons in the service of Pakistan." By contrast, Article 177 is expressed to apply to a person who is "a member of an All‑Pakistan Service or of a civil service of the Centre or of a Province, or who holds a civil post in connection with the affairs of the Centre or of a Province." Such a person may not be dismissed or removed from service inter alia "unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken with respect to him." This protection is subject to two provisos which are not relevant to the case. There arose in the case, as a primary matter, for consideration, the question whether in point of termination of the employment, which had commenced, in the Ordnance Factory, when the Government of India Act, 1935, was in force, and in the Pakistan Naval Dockyard when this Act had been superseded by the Constitution of 1956, which itself derived its efficacy then from the Laws (Continuance in Force) Order, 1958, the case fell under Art. 179 or Art. 177 of the present Constitution. By the latter Order, vide Article 6, the appellant being a person in the `Service of Pakistan,' i.e., in the Ordnance Factory, was entitled to "continue in the said service . . : . . on the same terms and conditions . . . . . as before the Proclamation of the 7th October 1958. In the Ordnance Factory too, he was a temporary employee, but his employment was of indefinite duration. As will be seen presently, the last‑mentioned circumstance has an important bearing on the employee's rights as regards termination of the employment. Such rights as belonged to him under the Government of India Act, 1935, as "a servant of the (British) Crown in Pakistan" were continued in his favour, for as from the Constitution day, viz., the 23rd March 1956, he became "a servant of Pakistan on the same terms and conditions as were applicable to him immediately before . . . . " The point, which appears (speaking with respect) to have escaped the attention of the learned Judges in the High Court, is that by Article 234(1) of the present Constitution, the appellant, being a person who was in the service of Pakistan before the commencing day viz., the 7th June 1962, was entitled, as from that day, to "continue in the service of Pakistan on the same terms and conditions as were applicable to him immediately before," subject only "to this Constitution and the law." The learned Judges appear to have gone on the supposition that, being described as `temporary' in his service records, the appellant's case fell wholly within Article 179 of the new Constitution. Article 179 is itself an innovation, inasmuch as it provides constitutional authority for the employment of public servants in a temporary capacity, which was never previously thought necessary. Both in the Government of India Act, 1935, and in the Constitution of 1956, the reference to temporary servants and the terms and conditions of their employment, is oblique. In section 241 of the Act, which in subsection (2) required that the conditions of service of public servants should be prescribed by rules, a proviso saved from this requirement, "persons employed temporarily on the terms that their employment may be terminated on one month's notice or less." This saving was repeated, in the same terms, in Article 182 of the Constitution of 1956, but in neither of these constitutional instruments, which were operative from 1935 to 1958, was there any provision similar to those now made, by Article 179 of the new Constitution, viz.: (1) empowering the President, in regard to the Centre, to "authorize the temporary employment of persons in the service of Pakistan"; (2) empowering likewise the making of "rules for regulating such temporary employment"; and (3) saving such "temporary employment" from the operation of such other Articles in Chapter 1 of Part VIII as Article 175, prohibiting the employment of aliens, Article 176, placing the tenure of Central employees within "the pleasure of the President", Article 177, inter alia providing for a show‑cause notice and proceeding prior to dismissal, removal or reduction in rank, and Article 178, providing inter alia that such employment should be governed by rules made by competent authority and that there should be certain rights of appeal. There may be other points of difference as well, but it will be sufficiently clear from the foregoing details, that Article 179 is intended to create, in respect of the general power of giving employment in the public service, a new scheme, differing from that in force prior to the 7th June 1962, which requires express authorization and regulation by express rules, in respect of temporary employment, and such a scheme cannot be thought to impose obligations upon persons already in such employment. For such persons, Article 234(1) guaranteed continuance of the terms and conditions under which they were previously serving. The appellant is one of such persons. He is entitled, by Article 2 of the present Constitution, "to enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law," and that includes the law as settled by earlier judicial decisions, in particular, decisions given by the Supreme Court of Pakistan. In confining their attention to the mere words of Article 179, and ignoring the other provisions of the Constitution, as well as authoritative pronouncements of this Court, the learned Judges of the High Court (we say so with due respect) have taken altogether too limited a view of the matter before them. The appellant holds the degree of M.Sc. in Technology from the University of the Punjab, having stood first in the first class in the examination held in 1951. He was selected in 1952 by the Pakistan Ordnance Factories, to go to the United Kingdom, where he underwent two years' intensive training in certain branches of technological work, obtaining diplomas as required, and also winning prizes. Returning in 1954, he was given the post of Technical Assistant, Class I, in the Ordnance Factories at Wah. It is admitted that throughout his service, the appellant was a Civilian Gazetted Officer serving in the Ministry of Defence. He served at Wah until January 1959, having gained in the meantime two promotions, i.e., to act as Assistant Works Manager, and later as Shop Manager. It may be mentioned here that in 1955, a number of Civilian Gazetted Officers' posts in the Ministry of Defence were included in an established service, namely, the General Central Service, Classes I and II. We have examined the notification issued in this connection up to date and find that in March 1956, the posts of Assistant Works Manager and Shop Manager were notified as having been included in the General Central Service, Class I, of which therefore it must be held that the appellant was a member, albeit in a temporary capacity, up to January 1959. The order of his appointment to the Ordnance Factories in the first instance mentions a probationary period, which the appellant duly passed, and set out that thereafter he was to be "retained in his appointment" and "after completion of three years' continuous service in the gazetted cadre, he (will) become eligible for substantive appointment against permanent posts." He did not receive any such substantive appointment. So long as he was employed in the Ordnance Factories, the following condition was applicable in his case, viz.:‑ "His services before substantive appointment will be liable to termination on giving three months' notice without assigning any reasons:" In August 1958, the appellant was selected for the post of Senior Scientific Officer in the Pakistan Naval Dockyard on certain terms and conditions of which the following are relevant, viz., that the appellant would be "temporary, but may continue for an indefinite period," that he was to be on probation for a period of one year, extensible by the Government, during which period his service "in the Pakistan Navy will be liable to be terminated without notice and without any reason being assigned," but thereafter it would be terminable "by giving 14 days' notice or pay in lieu thereof on either side". He took up this appointment on the 3rd February 1959, but the appointment was not gazetted until October 1959, when a notification was issued stating that "on transfer from Pakistan Ordnance Factories" (which suggests continuity, if only as a Civilian Gazetted Officer) he was appointed as "temporary Senior Scientific Officer in the Pakistan Navy" and containing the following further provision, viz.:‑ "He will be on probation for a period of one year from the ' date of his appointment extensible by an order either before or after its termination by further period not exceeding six months, provided that if no order is made by the day following the termination of the aforementioned probationary periods, the appointment shall be deemed to be held until further ordeRs." The question arises as to the meaning to be attached to the words "until further ordeRs." On their face, these words seem to import absolute power in the competent authority to retain or not to retain the appointee in service. They may also be understood to confer upon such authority a power to appoint to a different post, in the same or a different grade, provided, (i) such a post was available, and (ii) to appoint thereto was intra vires. It is clearly impossible to construe the expression "until further orders" as conferring absolute power of retention or dismissal upon the competent authority. The matter of public employment is governed by a complex of laws, commencing with constitutional instruments and ending with statutory rules, which have been authoritatively construed, by the Superior Courts, in relevant respects. 'Therefore, these words can only mean that the appointee was subject to lawful orders made by competent authority. In 1962, the power to appoint to a different post was exercised. In December 1961, the post of Senior Scientific officer was brought under reduction, and in its place, a higher paid post of Senior Scientific Officer‑in‑charge, Laboratory was created. By an order gazetted on the 30th March 1962, the appellant who was described as "temporary Senior Scientific Officer" was appointed to be "temporary Senior Scientific Officer‑in‑charge Laboratory," again "until further orders". The question which arises for decision in the case is whether the order of the 29th August 1963, dispensing with the services of the appellant from the latter post upon giving him 14 days' notice of discharge was intra vires the Government of Pakistan in the Ministry of Defence. It may be mentioned here that correspondence has been placed on the record which shows that difference of opinion on a technical matter had developed between the appellant acting in his capacity as Senior Scientific Officer‑in‑charge Laboratory and the Captain Superintendent of the Pakistan Naval Dockyard in which he was serving, and the Captain Superintendent had found cause to be dissatisfied with the work of the appellant. A letter issued by him dated the 19th October 1962, contains, for instance, a statement that the correspondence in the case indicated "a sad state of affairs in the Pakistan Navy Dockyard Laboratory," and this had led the Captain Superintendent to appoint a senior officer "to carry out a detailed investigation" and to make a report. No copy of the report has been placed on the record, but little doubt need be felt that the notice of discharge was issued in consequence of the aforesaid investigation. It is accepted in the case that the appellant was a Civilian Gazetted Officer working in the Ministry of Defence from the time when he joined the Ordnance Factories in 1954 and until the time when the order of discharge was issued. It has been ascertained by reference to a complete series of notifications issued by the Government, classifying posts of Civilian Gazetted Officers which were included in the General Central Services that the particular posts last held by the appellant, namely, those of Senior Scientific Officer, Pakistan Navy, and Senior Scientific Officer‑in‑charge Laboratory, Pakistan Navy, have not yet been included in this classification so that the appellant cannot claim to have held a post in an established service. At the most he can claim to have been at the time of the notice of discharge the holder of a civil post in connection with the affairs of the Centre." The claim made on his behalf is that this post was sanctioned on a permanent basis, and although his appointment thereto was expressly described as temporary, nevertheless it had been made clear from the outset that it was to be of indefinite duration and an appointment held under these conditions is not liable to be terminated otherwise than by the method now provided under Article 177(1) (b) which replaces Article 181(2) of the Constitution of 1956, which itself reproduced the similar provision made in section 240(3) of the Government of India Act, 1935. The reliance of the appellant is upon the interpretation placed on these earlier provisions by the Courts in Pakistan in relation to temporary posts held without limitation of time. It is claimed on his behalf that it is settled by a number of decisions of the Superior Courts in Pakistan that the protection given by section 240, subsection (3) of the Government of India Act, 1935, i.e., that a holder of a civil post may not be removed from service otherwise than after being given a reasonable opportunity to show cause against such removal, extends also to persons in temporary service of indefinite duration. The earliest decision on this point is that published as Yusuf Ali v. Province of Punjab (P L D 1949 Lah. 219). The law was declared to that effect by the Supreme Court in the case of Noor‑ul‑Hassan (P L D 1956 S C (Pak.)331=1956 P S C R 128 ). For the proposition that discharge by notice where the competent authority is so empowered by the conditions of the employment is, in the circumstances of his case, equivalent to dismissal or removal in the sense of the Constitution, the appellant relies on the judgment of this Court delivered in the case of Ghulam sarwar (I). Although the law was there declared with reference to section 240(3) of the Act of 1935, it applies equally to the interpretation of Article 181(2) of the Constitution of 1956, which was expressed in indentical terms. The protection thus available to him, against termination of his employment by notice, was continued through the period of Martial Law by Article 6 of the Laws (Continuance in Force) Order, 1958 and into the period following the promulgation of the present Constitution, by virtue of Article 234(1). His case falls outside Article 179 altogether. The reliance of the learned Attorney‑General appearing for the Central Government was placed mainly upon the contention that by expression, the appellant has been a temporary holder of each of the posts which he has held as a Civilian Gazetted Officer. He was never appointed substantively in any of these posts, and as such his case would fall under Article 179 of the Constitution. The condition of termination on 14 days' notice had been communicated in the first order of selection for appointment to a post in the Pakistan Navy, and was applicable throughout the period of his service there. If the words "until further orders" appearing in the order of selection and the later orders were to be interpreted as applying to the holding only of the particular post, then indeed it could be contended that the power of removal from his service was not subject only to the condition of notice, but it was argued that these words were intended to cover all the obligations arising from the conditions expressed at the time when the appellant joined the post in the Pakistan Navy. The Pakistan Navy maintains a seniority and nominal roll of Civilian Gazetted OfficeRs.A copy of this roll corrected up to the 30th November 1962, has been placed on the record. Under the heading `Laboratory,' four posts are classified, namely, one of Senior Scientific Officer‑in‑charge Laboratory, and three posts of Junior Scientific OfficeRs.The first‑mentioned post is shown to be held by the appellant by promotion on the 29th December 1961, but in a temporary capacity. One of the other posts is shown as being vacant, but two others were held by named persons, also in a temporary capacity. The roll contains a separate list of Civilian Gazetted Officers holding isolated appointments. It is difficult to deny to the appellant the advantage of his holding a post in a classified section of the Pakistan Naval Establishment of Civilian Gazetted OfficeRs.It is also clear that he can claim that, in estimating the quality of his appointment, consideration should be given to the facts that he had successfully undergone a period of probation before being appointed as Senior Scientific Officer, and thereafter had gained promotion in December 1961, to the higher post of Senior Scientific Officer‑in‑charge Laboratory. And, in our opinion, he can claim also that by virtue of the Gazette Notification of the 16th October 1959, which mentioned the period of his probation, and that after its successful termination he was to be deemed to hold his post "until further orders," he was entitled to claim that he was only removable (1) P L p 1962 $ C 142=(1962) 2 P $ .Q R Q9 , front appointment by orders of competent authority mace in t compliance with the Constitutional provisions and the law, i.e., the rules of his service, applicable to his case. In his petition to the High Court, it was clearly stated that he was entitled to be treated in accordance with the Civilian Employees in Defence ‑Service (Classification, Control and "appeal) Rules, 1961, of which rule 9(4) was cited. He had invoked the protection of those Rules in his representation to the President against the order of discharge dated the 3rd September 1963, which was withheld by his superior authority. It is printed as Annexure `Q' in the paper‑book. It does not appear from the record of the case that any reply was ever made by the Government on this point. The reliance of the Government has throughout been on the single circumstance that he has always been described as a temporary holder of the particular posts, which he has occupied. We have not found it necessary to refer to those Rules, and mention them only for the purpose of showing that a case for treatment under law was set up by the appellant. We are in no doubt that the law requires, for the removal of the appellant from his office, a procedure altogether more elaborate and thorough than the mere issue of a notice o discharge. This Court has held, in the case of Ghulam Sarwar (cited above) that the termination of a railway employee's employment, by notice purporting to issue under a term in his contract of employment, where the facts showed that he had incurred the displeasure of his superior officers, but without a show‑cause notice, was a violation of the guarantee of employment conveyed by section 240(3) of the Act of 1935. The employment in that case was permanent, but in this respect, an employee holding an appointment indefinite in duration, although not in a substantive capacity, but expressly described as temporary, is in no worse case, as was held in the case of Noor‑ul‑Hassan (cited above). It is in the sense of these propositions of law that the appellant's appointment "until further orders" to his last post must be understood. There has been a violation of a constitutional guarantee available to the appellant, and we find him to be clearly entitled to the relief he claimed. We accordingly allow this appeal, and declare that the termination of the appellant ,'s service by notice was without lawful authority, and is of no legal effect. The consequence will be that he will be treated as if he were still in the appointment from which he was removed, and that if it is desired to remove him therefrom, compliance must be made with the relevant provisions of the Constitution and such Rules as may be applicable in his case. The appellant will have his costs in both Courts. B. Z. KAIKAUS, J.‑I have reached the same conclusion as my Lord the Chief Justice, but my line of reasoning is not precisely the same. The main question for decision is whether the employment of the appellant, on the date of his discharge, was validly subject to a condition that his services could be terminated by 14 days' notice. If it was so subject the termination of his employment by a notice would not be dismissal or removal and would not attract Article 177 of the present Constitution. My Lord the Chief Justice has on an interpretation of the words "until further orders" appearing in the notification relating to the appointment of the appellant, held that the condition of notice was not applicable. Speaking with great respect, I am unable, considering all the circumstances to agree with this finding. This finding is in fact not consistent with the plea of the appellant himself for he has accepted in the petition for leave to appeal that his appointment was subject to the 14 days' notice clause, but I will first state the relevant facts in brief. The appointment of the appellant even in the Ordnance Factory was admittedly "liable to termination on giving three months' notice without assigning any reasons". When he was appointed Senior Scientific Officer in the Pakistan Navy on 3‑2‑1959, the two relevant conditions of his appointment were: (i) The appointment will be temporary but may continue for an indefinite period. (ii) His service in the Pakistan Navy will be liable to be terminated without notice and without any reason being assigned during the probationary period and thereafter by giving 14 days' notice or pay in lieu thereof on other side. Whereas the first of these conditions refers to "the appointment", the second refers to "his service in the Pakistan Navy" so that this condition was to be attached to the whole of his service in the Navy. These conditions of appointment are contained in a letter, paragraph 3 of which runs: "

3. It is requested that the above terms and conditions of service may please be communicated to Mr. Sheikh, and if acceptable to him, he may be relieved of his present duties and directed to report to this Ministry not later than the 3rd February 1959." The appellant had therefore accepted the condition of notice for his services in the Pakistan Navy. It may be explained here that all the conditions of service were not and need not have been reproduced in the notification relating to the appointment which was in the following words: "He will be on probation for a period of one year from the date of his appointment extensible by an order either before or after its termination by a further period not exceed six months, provided that if no order is made by the day following the determination of the aforementioned probationary periods the appointment shall be deemed to be held until further ordeRs." In December 1961, the post of Senior Scientific Officer was brought under reduction and the appellant was appointed to the higher post of Senior Scientific Officer‑in‑charge Laboratory on 29‑11‑1961 though the notification relating to it appeared in the Gazette only on 30‑3‑1962. The order of appointment has not been placed on the file. The notification, however, runs: "Mr. Abdul Majid Sheikh, Temporary Senior Scientific Officer to be temporary Senior Scientific Officer‑in‑charge Laboratory with effect from 29th December 1961, and until further ordeRs." The question is whether by this notification the condition of notice to which according to the letter of the Government "his service in the Pakistan Navy" was to be subject has been abrogated. I do not see any ground for holding that it has been abrogated. When it is said that a person holds an appointment till further orders it only means that he holds it till orders are passed terminating his services. These words cannot be interpreted as carrying a necessary implication that all conditions relating to hi tenure of service are withdrawn and henceforth he will b dismissed or removed without an opportunity to show cause. Even in the notification relating to his appointment as Senior Scientific Officer the words "until further orders" were used, but the condition of notice was not thereby waived. In fact "until D further orders" are words, which when used without conjunction with any condition of service may be of stronger import than a liability to termination of service by notice and may imply that the employment can be terminated at any time. These words are generally used in connection with officiating employments and in such cases, according to the view which this Court has been taking, the, officiating appointment can be terminated at the will of the appointing authority. But really as I have already observed it was not the case of the appellant that his employment as Senior Scientific Officer‑in charge Laboratory was not subject to the condition of 14 days' notice. I reproduce below part of para. (2) of the petition for special leave where there is a clear admission that his appointment was so subject:‑ "(2) . . . . . . . . . The post of Senior Scientific Officer‑in‑charge Laboratory held by the petitioner was a substantive post. Moreover, at the time of his appointment to this post he had already served the Government of Pakistan in the same Ministry for a period of six years so that he has now a continuous service of nearly eleven years to his credit creating a strong equity in support of security of his employment. Although the post was to continue for an indefinite period and was, therefore, non- temporary yet the terms and conditions, contained a provision for termination of the appointment by giving fourteen days' notice or pay in lieu thereof so that the terms and conditions became illusory." I may point out that in the representation which the appellant made to the Government on receipt of notice of termination of service there was no objection that the notice clause was inapplicable although in the notice there was specific reference to this clause. In the writ petition too there was no such plea. But the next question is whether the condition empowering the Government to terminate the services of the appellant was a valid condition which could legally be attached to the service of the appellant and after a full consideration of the matter I have reached the conclusion that it was an invalid condition. The validity of such a condition or clause was considered for the first time in MRs.A. V. Isaacs v. Federation of Pakistan (P L D 1954 Lah. 800). In that case, sitting in the High Court with Akhlaque Hussain, J. I held that a clause in the agreement of a permanent Government employee entitling the Government to terminate his services by two months' notice was invalid on account of its inconsistency with section 240 of the Government of India Act and the termination of service by notice under this clause without an opportunity to show cause was void. The correctness of this view was challenged in the High Court in Ghulam Sarwar's case and the matter was referred to a Full Bench. The Full Bench by a majority held against the view in MRs.Isaac's case but on appeal a Bench of seven Judges of the Supreme Court, I being one of them, unanimously accepted the view taken in MRs.Isaac's case. The decision, which has been cited by my Lord the Chief Justice is reported as Ghulam Sarwar v. Federation of Pakistan (P L D 1962 S C 142=(1962) 2 P S C R 429). A careful consideration of the grounds on which that decision was based will show that although the civil servant concerned in that case was a permanent servant and in the present case it is a temporary employee the reasoning in that case is fully applicable to the present case. My line of reasoning in MRs.Isaac's case and which I only further developed in Ghulam Sarwar's case was the following. If it be held that this clause in the agreement of Ghulam Sarwar who is a permanent Government employee is valid the Government will be entitled to attach such a condition to the employment of every one. of its permanent employees with the result that none of its employees will be entitled to an opportunity to show cause against termination of his services and section 240 of the Government of India Act will stand defeated. That section which intended to provide security of service to the civil servant did not envisage the running of administration with employees none of whom was entitled to the benefit of section

240. The Government could for sufficient reasons employ persons for fixed periods and even for periods terminable with notice, but it cannot do so simply to retain a power of arbitrary termination of employment. The Government cannot make this clause an ordinary incident of the employment of its servants. Ordinarily the Government has to engage permanent employees who are entitled to the protection of section

240. I do not think the line of reasoning of the other learned Judges who heard Ghulam Sarwar's case was much different. The criterion then for determining the invalidity of such a clause in particular circumstances is whether to permit it under those circumstances will lead to the defeating of the constitutional provision which provides for an opportunity to show cause or whether this clause had, in the case under discussion, been inserted with the sole object of retaining a power of arbitrary termination of service in respect of an employee who would otherwise be entitled to the benefit of the constitutional provision. To consider the application of these criteria to the present case I find that the post of a Senior Scientific Officer‑in‑charge Laboratory is a permanent post. The appellant had alleged that it was a permanent post and this had not been denied by the Government, but I have even otherwise verified that it is a permanent post for there is on the record a letter of 29th December 1961, from the Ministry of Defence to the Commander‑in‑Chief which states the "Permanent Complement. for P. N. Dockyard" and the post of the Senior Scientific Officer‑in‑charge Laboratory is one of the posts mentioned therein Now if the post was a permanent post can the Government claim that its ordinary method of filling the post will be appointment of a person whose services are terminable without assigning cause with a notice of 14 days? I have no hesitation in answering this question in the negative. If the Government be allowed to fill all permanent posts in this manner the constitutional protection granted to the civil servant will disappear. I am discussing the position as it was under the Constitution of 1956 for as pointed out by my Lord the Chief Justice the appellant is entitled by virtue of Article 234(1) of the present Constitution to the rights he possessed under the Constitution of 1956 and I need not consider what difference, if any, is made in this respect by the present Constitution. To repeat, the Government could not as an ordinary and permanent arrangement fill permanent posts by employees subject to a condition of termination of employment by notice. The Government could fill the post in this manner if the Government was unable to get a person with proper qualifications and was filling the post as an interim measure till it secured a person with proper qualifications, and concievably in some other special circumstances, for sometime, but it cannot adopt it as a rule that the post will be filled in this manner. When I ask myself the question as to why the Government is filling a permanent post in this manner I find no answer except that the Government wants to retain a power of arbitrary termination of service so as to defeat the constitutional guarantee. No condition of service that is intended to defeat a constitutional guarantee can be permitted to be operative. I hold that the condition permitting termination of service by a notice was illegal and the appellant was entitled to an opportunity to show cause. His termination of service which amounts to dismissal or removal is void and inoperative. I would allow this appeal with costs in both Courts. A. H. Appeal allowed.