P L D 1957 (W (PLP)

A. R. CHANGEZ, J.‑

The facts of the case giving rise to this second appeal are as follows. The plaintiff was employed as a temporary Civilian Assistant Security Officer with effect from the 16th of November 1943, subject to one month's notice, for the duration of the Second World War and for such time thereafter as might have been considered necessary vide letter of appointment copy of which is Exh. D.

1. The terms and conditions of his service were incorporated in the agreement Exh. D. 2, dated the 4th of April 1945, which bears the signatures of the plaintiff. According to para. 6 of the agreement the plaintiff's services could be terminated by the Government or the appointing officer by giving him in writing one month's notice or by giving him one month's pay in lieu thereof. The plaintiff could also resign at any time by giving one month's notice vide para. 2 of the agreement. On the 27th of July 1946, lie was made temporary substantive Civilian Assistant Security Officer from the date of his appointment vide Gazette of India, Notification. copy of which is Exh. P.

4. On the 30th of January 1953, he was discharged from service in accordance with the terms and conditions of his appointment and was paid a month's salary in lieu of notice, vide letter Exh. P.

7. The plaintiff then instituted this suit on the 30th of November 1953, for a declaration that the order of discharge was not passed in due course of law and was wrong, illegal and ultra vires, and that he was still a member of the service and was entitled to hold the office. The suit was resisted by the defendant on the grounds that the plaintiff was discharged from service in accordance with the terms and conditions of his appointment and that the order of discharge was valid and had been passed by the competent authority. The trial Court dismissed the suit. Having failed in his appeal in the Court of the Senior Civil judge, the plaintiff has now come up in second appeal before this Court. It was contended on behalf of the appellant that at the time of the discharge from service he was holding the post of a temporary substantive Civilian Assistant Security Officer, and the terms and conditions of service incorporated in the agreement Exh. D. 2 were no longer applicable to his case and as such his services could not have been terminated except in accordance with the provisions of section 240 of the Government of India Act, 1935. It was also argued that whether the terms of service were governed by the agreement Exh, D. 2 or not, his services could have been dispensed with only by the Government or by the appointing officer, who in his case was General Officer Commanding‑in‑Chief and was a Major‑General, but he was actually discharged from service by the Acting Chief of the General Staff who was merely a Brigadier. As regards the first point, the question arises whether by making the plaintiff temporary substantive Civilian Assistant Security Officer any change had been brought about in the terms and conditions of his service incorporated in the agreement Exh. D.

2. It appears the War Department Letter No. 03267/64/M.G. 7‑C. dated the 5th of January 1943, a copy of which is Exh. D. 3, that the Governor‑General in Council had sanctioned the employment of Civilian Assistant Security Officers in Ordnance Establish ments as a temporary measure for the duration of the II World War and for such time thereafter as might have been considered necessary. It was in pursuance of this letter that the plaintiff appears to have been appointed temporary Civilian Assistant Security Officer, and the terms and conditions of his service were incorporated in the agreement Exh. D.

2. Letter A. I. (I) No. 1112/1945, a copy of which is Exh. P. 2, prescribes the rules governing substantive appointments to temporary posts created in connection with the war. The relevant rules are reproduced below:‑-- Rule 2.‑Substantive appointment to temporary posts created in connection with present war shall be governed by the following principles :‑ (i) Temporary posts created on or before the 21st December 1943, and existing on the 10th February 1945, shall unless stated to the contrary in the orders sanctioning their creation or in any subsequent orders of the competent authority be field to have been created for a period of not less than three years. (ii) Such a post may, therefore, be filled substantively with retrospective effect from the date of appointment by the first holder of it, if he was appointed thereto on or before the 31st December 1943". It was some time after this letter had been issued, that the plaintiff was made temporary substantive Civilian Assistant Security Officer which post he continued to hold till he was discharged from service. By virtue of War Department letter No. 0905/3/MG/CD‑IV‑B, dated the 6th of September 1946, copy of which is Exh. D. 4, the letter Exh. D. 3, by which the service had been sanctioned as a temporary measure, was cancelled and the Governor‑General in Council sanctioned the establish ment of the service in terms of the letter Exh. D.

4. A careful perusal of the document Exh. D. 4 shows that it applied to future employments. According to the terms of this document, the Civilian Labour Officers and Civil Assistant Security Officers were to be selected from ex‑Military Officers who had been released as a result of general reduction in the Army, and in case such officers were not available they were to be recruited from retired or ex‑Police Officers or from other sources on the recommendations of the Area Commander. Although letter Exh. D. 3 had been cancelled by this letter it did not say anything about the terms and conditions of service, of the existing establishment. It is not the case of the plaintiff that he had been selected as a temporary substantive Civilian Assistant Security Officer on the basis, and in terms of tire letter Exh. D. 4, and as such his case does not appear to be governed by this letter. "Temporary appointment" as defined in Article 76 of the Civil Service Regulations relating to salary, leave, pension and travelling allowance (hereinafter referred to as C. S. R.), is an appointment carrying a definite rate of pay sanctioned, for a limited time. Article 76‑D of the C. S. R. empowers that the authority which appoints as officer to a temporary appointment may declare that the officer shall hold the appointment substantively for the purposes of the acting allowance rules. It is also laid down in this Article that the effect of such a declaration will be that if the officer officiates in another appointment while continuing to retain a lien on the temporary appointment, his emoluments in respect of the temporary appointment will be regarded as his substantive pay for the purpose of calculating his salary. Article 90 of the C. S. R. is as follows :‑

"An officer to whom the rules in section, I of Chapter VI do not apply may be appointed substantively pro tempore on full pay, without prejudice to the lien of the absentee, in place of an absentee who draws no part of the pay of the appointment or of an officer on deputation, provided that when the absence is due to a temporary appointment or the officer is on deputation, the temporary appointment or deputation lasts for six months or more. The full pay of an officer thus appointed substantively for a time may, in like manner and upon the same condition, be given to a substitute similarly appointed. The status of an officer appointed substantively pro tempore under this Article is that of an Acting officer, and if he is appointed to officiate in a higher appointment his salary reckoned upon his substantive pay proper and not upon the pay of the appointment he held substantively pro tempore". Article 1 (a) of the C. S. R. says :‑ "These Regulations are intended to define the conditions under which salaries, and leave and pension and other allowances, are earned by service in the Civil Departments, and in what manner they are calculated. They do not deal otherwise than indirectly and incidentally with matters relating to recruitment, promotion, official duties, discipline, or the like . From these Articles, it becomes clear that the substantive appointment of a civilian to a temporary post is intended to regulate his pay in terms of Article 156 of the C. S. R. This is also clear from the document Exh. P, 2 referred to above which says that substantive appointment of a civilian to a temporary post is permissible under the Civil Service Regulations at the discretion of a competent Administrative Authority. The main benefit admissible in such a case is in regard to fixation of pay under Article 156 of C. S. R. which is intended to regulate pay on substantive appointment both to permanent arid temporary posts.' The expression "progressive pay" used in Article 156 of the C. S. R. is explained in Article 43 of the C. S. R. according to which progressive appointment means an appointment the pay of which is progressive, that is, pay which, subject to the ' good behaviour of an officer, rises, by periodical increments, from a minimum to a maximum. The plaintiff was appointed on progressive pay in the grade of Rs. 175‑5‑200 vide letter of appointment Exh. D.

1. The word "substantive" has not been defined anywhere in the C. S. R but having regard to the contex in which the word has been used in the Articles of the C. S. R. quoted above, I am of the view that the word has been used only in connection with the regulation of the pay. It has nothing to do with the duration of the appointment, but merely describes the nature and the character of the appointment. His service Book Exh. P.5; shows that he was never made permanent. In view of the above discussion, I am inclined to hold that with the appointment of the plaintiff as a temporary substantive Civilian Assistant Security Officer no change had been brought about in the terms and conditions of his service which continued to be governed by the agreement Exh. D.

2. The contract of service had never been cancelled or varied and the plaintiff remained a temporary employee throughout his service, and his services therefore could have been terminated by giving him one month's notice or by giving one month's salary in lieu thereof in terms of the contract of his service. It was faintly argued that the plaintiff had been discharged from service mala fide. fit support of this contention, learned counsel for the appellant placed reliance on Raja Muhammad Afzal Khan v. Federation of Pakistan (P L D 1957 (W. P.) Lah. 17.), where it was held by a Division Bench of this Court that if one month's notice is not given in good faith and the clause in the contract has been used as a pretext for getting rid of a person who has made himself undesirable for some reason, then it amounts to removal within the meaning of Article 181 of the Constitution which is analogous to section 240 of the Government of India Act. There is no evidence worth the name in the present case, to show that the notice bad not been given to the plaintiff in good faith and as such this ruling has got no application to the facts of this case. Besides, it has been held by the Supreme Court of Pakistan in Abdul Karim v. West Pakistan Province (PLD1956SC(Pak.)298) and in an un reported judgment in the case of Shamsul Huda v. The State (Constitutional Civil Appeal No. 1‑D of 1956) decided on the 21st of November 1956, that the termination of service of a temporary employee on one month's notice in terms of the contract of service is not removal or dismissal and section 240 of the Government of India Act is inapplicable to such cases. The same principle is deducible from another decision of the Supreme Court of Pakistan reported as Nur‑ul‑Hasan and others v. The Federation of Pakistan (P L D 1956 S C (Pak.) 331). Even the Division Bench of this Court held in the aforesaid case that if the notice given is not mala fide then the termination of service did not amount to removal of service within the meaning of Article 181 of the Consti tution. For the foregoing reasons, there can be no manner of doubt that section 240 of the Government of India Act was inapplicable to the facts of the instant case and no show -cause notice was, therefore, necessary. As regards the second point, it was argued that the plaintiff was appointed by the General Officer Commanding in‑Chief who was a Major‑General as is clear from the agreement Exh. D. Z itself, and he was discharged from service by the Acting Chief of General Staff who was only a Brigadier. It was, therefore, contended that this was in direct violation of the constitutional guarantee provided in subsection (2) of section 240 of the Government of India Act which inter alia lays down:‑-- "And no other such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed". The question that falls to be determined is whether the termination of service of an employee in accordance with the terms of contract of service is tantamount to dismissal within the meaning of subsection (2) of section 240 of they Government of India Act. There are a number of authorities Is which need not be cited here which lay down clearly that such a termination of service is neither removal nor dismissal within the meaning of subsection (3) of section 240 of the Government of India Act. Has the word "dismissed" as used in subsection (2) of section 240 of the Government of India Act, a different meaning ? The precise point does not appear to have been the subject matter of any express decision so far. But I have no doubt in my mind that it 1 has got the same meaning as it has in subsection (3) of section 240 of the Government of India Act. Both these subsections appear to be interdependent. The holders of civil posts mentioned in subsection (1) of that section were given two constitutional guarantees, firstly, that they would not be dismissed from service by any authority subordinate to the appointing authority, and, secondly, that before they are dismissed or reduced in rank, a show‑cause notice was necessary. To my mind, the word "dismissed" is a technical word and has been used in both these subsections in the sense in which a person's services are terminated for misconduct. I am, therefore, of the view that subsection (2) of section 240 of the Government of India Act does not govern the facts of the present case. According to para. 6 of the agreement Exh. D. 2, the services of the plaintiff could have been terminated by the Government or by the appointing officer. The expression "appointing officer" has been explained in the opening part of the agreement itself, that it shall where the context so admits include any officer under whom the employee may hereafter be serving having authority to make the like appointment. From the Notification No. 1151/194/MG/ CP‑IV, dated the 15th of April 1950, of the Government of Pakistan, Ministry of Defence (Army Branch), a copy of which is Exh. D. 5, it transpires that the post of General Officers Commanding‑in‑Chief, Commands, had been abolished in Pakistan, and with reference to letter Exh. D. 4, sanction of the Governor‑General was conveyed to the delegation of powers to the Chief of the General Staff, Pakistan Army, to control recruitment, discharge etc. of Civilian Assistant Security Officers employed in the army. It is, therefore, clear that at the time of the discharge of the plaintiff from service no person was holding the post of the General Officer Commanding‑in‑Chief, Commands, in Pakistan and the powers of recruitment, discharge etc. had been delegated by the Governor‑General to the Chief of the General Staff, Pakistan Army. Therefore, in terms of the agreement Exh. D. 2. the Chief of the General Staff having become the appointing Officer was authorised to discharge the plaintiff. It was not disputed that the plaintiff was serving under the Chief of the General Staff at the relevant time. I do not think that it has made any difference, that the order was actually passed by the Acting Chief of the General Staff. In fact this point was not agitated before me by the learned counsel for the appellant. The order of discharge was, therefore, passed by the competent authority and was perfectly legal and valid. Even if subsection (2) of section 240 of the Government of India Act had been applicable to the facts of this case, then also I think that the order of discharge, in view of the aforesaid circumstances, could not have been challenged. But, as I have already held above that subsection (2) of section 240 of the Government of India Act is inapplicable, it seems unnecessary to give a definite opinion on this point. For the aforesaid reasons, I see no force in this appeal and dismiss it, but as the points involved were of a com plicated nature, the parties are left to bear their own costs throughout. A.H. Appeal dismissed.