P L D 1956 Supreme Court (Pak (PLP)

All that is necessary now is to dispose of Mr. Manzur Qadir's contention that the appellants were, entitled to a formal enquiry under the Police Rules as well as the Sind Civil Service Rules and that no such enquiry having been held their dismissal is invalid, and to consider the question whether some sort of declaration should be granted to them in the circumstances of the case, I have held that the appellants were temporary employees who were not under the Police Rules entitled to a formal enquiry but even if they had been permanent and thus entitled to a regular inquiry under those rules, I am perfectly clear in my mind that a breach of the rules as distinguished from the violation of a constitutional provision would not have given them a cause of action t; and that such breach would not have been cognizable by a Court. The basic authority in support of this proposition is the Privy Council decision in Venkata Rao's case (641 A 55) but Mr. Manzur Qadir contends that that case was not rightly decided and is not good law. He addressed us no arguments in support of his contention and contented himself with the mere assertion that the rule laid down in that case, having been enunciated when India was still under the British domination, no longer holds good and that we are entitled to dissent from it. He also said something which I did not quite follow about imperialistic considerations influencing judgments of the Privy Council in such matters. I agree that decisions of the Privy Council are no longer binding on us now, but being expositions of the law by one of the highest judicial tribunals, in the world composed ‑ of distin guished men who had special knowledge of our public law, they are entitled to the greatest respect and we are not to disregard them merely on the ground of changed conditions because the recognition of any such ground for departure from well‑settled and fundamental principles would be tantamount to imputing judicial dishonesty to that Tribunal. Since Mr. Manzur Qadir persisted in his assertion, it become necessary to consider whether the several decisions of the Privy Council, which from important landmarks in the exposition of the law governing. the tenure of office of servants under the Crown and their right to seek redress from Courts, proceeded on correct principles which are applicable to present conditions, no change by the new Constitution having been made in that respect in the law. The first case on this important question is the decision in Shenton v. Smith where the Colonial Office Regulations which in nature and scope were similar to the Civil Service Rules were held by the Privy Council not to be a part of the service contract of a servant of the Crown and therefore not actionable in their breach. In explaining the legal position Lord Hobhouse said:‑-- "It appears to their Lordships that the proper grounds of decision in this case have been expressed by Stone, J. in the Full Court. They consider that, unless in special cases where it is otherwise provided servants of the Crown hold their offices during the pleasure of the Crown not by virtue of any special prerogative of the Crown, but because such are the terms of their engagement, as is well understood throughout the public service. If any public servant , considers that he has been dismissed unjustly, his remedy is not by a law suit, but by an appeal of an official or political kind. As for the regulations, their Lordships again agree with Stone, J. that they are merely directions given by the Crown to the Governments of Crown Colonies for general guidance, and that they do not constitute a contract between the Crown and its servants. In the heading they are stated to be `printed for the information and guidance of the Governors of Her Majesty's Colonies and of all Her Majesty's officers subordinate to 'then'. They are alterable from time to time without any assent on the part of Government servants, which would not be done if they were part of a contract with those servants. On the face of them it is pointed out (see Regulation 64) to be the general rule in Crown Colonies that offices are holden during Her Majesty's pleasure. The difficulty of dismissing servants whose continuance in office is detri mental to the State would, if it were necessary to prove some offence to the satisfaction of a jury, be such as seriously, to impede the working of the public service. No authority, legal or constitutional, has been produced to countenance the doctrine that persons taking service with a Colonial Government to whom the regulations have been addressed, can insist upon holding office till removed according to the process thereby laid down. Any Government which departs from the regulations is amen able, not to the servant dismissed, but to its own official superiors, to whom it may be able to justify its action in any particular case". In the subsequent case, Gould v. Stuart (1896 A C 575) the principle that the Crown has by law, whether in England or the Colonies, power to dismiss at pleasure its servants, civil of military, was reaffirmed, and it was held that a condition to that effect is an implied term of the contract of service, except where it is otherwise expressly provided, though the Board, after construing the various provisions of the' New South Wales Civil Service Act of 1884, held that they were inconsistent with and restricted the Crown's power to dismiss at pleasure. In Venkata Rao's ease (64 I A 55) the Board had to consider the implications of the two above‑mentioned cases and to decide whether under the Government of India Act, 1919, the Crown had an unqualified power to dismiss or whether the rules framed under that Act had the effect of restricting or curtailing that power, and further whether a contravention of those rules was actionable. The question was very carefully examined by their Lordships and Lord Roche who delivered the judgment expressed himself in the following terms :‑ "A special case such as was contemplated in the cited passage occurred in Gould's case (1) where the Board, consisting of three members, two of whom bad sat in Shenton's case (1895 A C 229), held, that the respondent Stuart held office in New South Wales under certain conditions expressly enacted in the body of the New South Wales Civil Service Act, 1884, and that these express provisions of the statute were inconsistent with importing into the contract of service the term that the Crown may put an end to it at its pleasure. The question is Does the present case fall into the general category defined and illustrated by Shenton's case, or the more exceptional category defined and illustrated by Gould's case 7 On the facts it stands somewhere between the two cases inasmuch as here the rules are expressly and closely related to the employment by the statute itself in these circumstances difference of judicial view in India has manifested itself. There are deci sions favourable to the present appellant in Satish Chandra Das v. Secretary of State for India (1926 I L R 54 Cal. 44) in J. R. Baroni v. Secretary of State for India in Council (1929 I L R 8 Rang. 215) and to some extent also in Bimalacharan Batabyai v. Trustees for the Indian Museum (1929 I L R 57 Cal. 231). On the other hand, both Courts in the present case have adopted the contrary view. In their Lordships' opinion the judgments in the Courts below express the correct view. The reasons which have led their Lordships to this conclusion may be shortly stated. Section 96‑B in express terms states that office is held during pleasure, There is therefore no need for the implication , of this term and no room for its exclusion. The argument for a limited arid special kind of employment during pleasure but with an added contractual term that the rules are to be observed is at once too artificial and too far‑reaching to commend itself for acceptance. The rules are manifold in number and most minute in parti cularity, and are all capable of change, Counsel for the appellant nevertheless contended with most logical consistency that on the appellant's contention an action would lie for any breach of any of these rules, as for example of the rules as to leave and pensions and very many other matters. Inconvenience is not a final consideration in a matter of construction, but it Is at least worthy of consideration, and it can hardly be, doubted that the suggested procedure of control by the Courts over Government in the most detailed work of managing its services would .cause not merely inconvenience but confusion. There is another consideration which seems to their Lordships to be of the utmost weight. Section 96‑B and the rule make careful provision for redress of grievances by administrative process, and it is to bb observed that subsection (5) in conclusion reaffirms the supreme authority of the Secretary of State in Council over the civil service. These considerations have irresis tibly led their Lordships to the conclusion that no such right of action as is contended for by the appellant exists. It is said that this is to treat the words 'subject to the rules' appearing in the section as superfluous and ineffective. Their Lordships cannot 8ccept this view and have already referred to this matter in their judgment in Rangachari's case. They regard the terms of the section as containing a statutory and solemn assurance that the tenure of office, though at pleasure, will not be subject to capricious or arbitrary action, but will be regulated by rule. The provision for appeal in the rules are made pursuant to the principle so laid down: It is obvious, therefore, that supreme care should be taken that this assurance should be carried out in the letter and in the spirit, and the very fact that Government in the end is the supreme determining body makes it the more important both that the rules should be strictly adhered to and that the rights of appeal should be real rights involving consideration by another authority prepared to admit error if error there be, and to make proper redress, if wrong has been done. Their Lordships cannot and .do not doubt that these considerations are and will be ever borne in mind by the Governments concerned, and the fact that there happen to have arisen for their Lordships consideration two cases where there has been a serious and complete failure to adhere to important and indeed fundamental rules, does not alter this opinion. In these individual cases mistakes of a serious kind have been made and wrong have been done which call for redress. But while thus holding on the clear facts of this case, as they now appear from the evidence, as they similarly held in Rangachari's case their Lordships are unable as a matter of law to hold that redress is obtainable from the Courts by action. To give redress is the responsi bility, and their Lordships can only trust will be the pleasure, of the executive government". The point was also raised in Rangachari's case (64 I A 40) which was argued at the same. time as Venkata Rao's case (64 I A 55) but it was held that for the reasons given in the latter case the con tention that a breach of the rules made under the Government of India Act, 1919, conferred a. right of action to enforce the rules was unmaintainable. The distinction between the breach of a constitutional provision and that of rules under the Government of India Act was again brought out in Lall's case (P L D 1948 P C 150) where the earlier decision in Rangacharl's case was approvingly cited and it was held that the breach in the case before the Board being of a constitutional provision, it was actionable in a Court of law and differed from a breach of rules which were alterable from time to time. This statement of the law has been consistently followed in India and Pakistan, vide Jagannath Prasad v. State of U. P. (A I R 1954 All. 629) Malik Narain Das v. District Board, Jhang (A I R 1940 Lah. 71) ; Aya Ram v. Punjab State (A I R 1955 N U C Pb. 4999) ; Punjab State Bhagat Singh (A I R 1955 Pb. 118) and Das Raj Kirpa Ram v. Punjab State (A I R 1954 Pb. 134) and the reasons on which it is founded areas cogent and unassailable as they were when it was first authoritatively enunciated. The Supreme Court of India also has followed this rule in Shyam Lala v. State of Utter Pradesh (1954 S C 369). If we now lay down a different principle and hold that the rules constitute a part of a public servant's engagement with Government, we would in effect and in direct contradiction of Article 180 of the new Constitution be ruling that servants of the State hold office not during the pleasure of the President or the Governor but during good behaviour. The result would indeed be chaos because in that case the administration of rules which; in the case of some departments run into several volumes, will have to be undertaken by the Court each breach of the rule would be actionable, in any case, the. subject‑matter of a writ ; and the whole administra tion of services will in the end pass on to the Courts. Further, because rules are liable to change, each alteration in them will bring about a change in the conditions of service and every Government servant' will thus, be having a separate contract with Government the terms of which will have to be looked for in the rules which were in force at the time of his appointment. And though, as the Privy Council pointed out, inconvenience is not the determining factor in matters of construction, I can find no authority for the proposition and none has been cited before us, that administrative rules can, in the absence of a special agreement, be considered to be a part of a Government servant's contract with the Government. The rules are entirely unilateral and run into details which are never known to a Government servant when he accepts service under Government. If action ability were made to depend on the nature of the rule broken, namely, whether the rule was fundamental or not, there being no definition in such cases of what a fundamental rule is the result will still be confusion because in that case it will be for the Courts to decide whether the rule contravened related to a fundamental service right, and as to this each Court will have nothing to go by except its own notion of fundamental service rights. I cannot, therefore, accept the contention that a. breach of the rule requiring the holding of a formal inquiry as actionable and that the Privy Council was wrong in ruling to the contrary. And it is too obvious to mention that if a breach of the rules is not actionable, the Court has no juris diction to grant a declaration on the ground of such breach. Coming now to the last question in the case, namely, having found that five of the appellants could not have been dismissed in the manner that they were what relief should‑we grant them ? The learned trial Judge granted them a decree declaring that the order of the Inspector‑General of Police, Karachi, dated the 30th December 1952, dispensing with their services with effect from 31st December 1952, was illegal, void and inoperative, and that they continued to be in the service of the Federation of Pakistan as Inspector or Sub Inspectors of Police in the Karachi Police. This judgment was pronounced on 1st December 1954, when a regular Police Service had been constituted for Karachi on a permanent basis. The result of the declaration, therefore, was that persons who were admittedly temporary when they were employed and who at the time of their dismissal were holding temporary posts which expired on 28th February 1953, were declared to be member of a permanent cadre of police. It is admitted by Mr. Manzur Qadir that the declaration that these appellants continued to be in the service of the Federation of Pakistan on the date of the decree could not have been granted to them. The duration of posts which they held expired on 28th February 1953, and from what I have said above it should be clear that the Inspector‑General of Police could have dispensed with their services on the expiration of the temporary posts which they were holding, and that he was entitled to say while refusing to appoint them to the renewed posts that their work was not satisfactory or that they were not fit persons to be re‑employed. I am also of the view that the manner in which action was taken against them shows that the Inspector‑General of Police was under the impression that he could dismiss a temporary servant before the expiry of the period for which he had been employed, even though the reason for such discharge might be misconduct, ineffici ency or dishonesty. If he had waited for a couple of months more and terminated the services of these appellants on the expiration of the period of temporary posts which they were occupying at the time of their dismissal, in my view of the' law the termination would have been valid and no objection to it could have been taken in a Court of law. The same would have been the result if there had been a stipulation as to notice and the termination had been effected after such notice. I am not deciding in this case the question whether, if there be no stipulation as to notice in such cases, the services of a temporary servant can be terminated after reason able notice or on payment of salary in lieu of notice, because, I have found that the reason for the removal of these appel lants being personal to them, and the termination being before the expiry of the period of the post the removal was wrongful and not in accordance with the terms of their employment. On this finding, all that these appellants are entitled to is to represent to the Government for payment of about 2 months' salary because no suit for the recovery of s salary would lie. A simple declaration that their dismissal was wrongful without considering the question what conse quence will follow from that declaration is in the present circumstances' likely the cause confusion and to be misunder stood and there is not sufficient material before us to fired what, legal rights will follow from the declaration because, as I have already said, the suit having been founded solely on the ground that the appellants were permanent employees, the nature, terms and incidents of their temporary tenure were never put in issue or inquired into, and it is impossible for us to spell out of the scanty , material on record a definite contract for them, I am, .therefore, of the view that the granting or withholding of a declaration being discretionary with the Court, there is no need for any declaration in this case beyond stating the exact legal position and leaving it to Government to take such action as they might consider necessary after the finding that the show‑cause provision of section 240, subsection (3) should have been complied with. similar course was adopted by the Privy Council in Rangacharl's case, by the Federal Court in Durga Prasad v. Govt. of U. P. and the Governor‑General of India (AIR 1949 F C 50) and by the Calcutta High, Court in Ramesh Chandra v. State of West Bengal (A I R 1953 Cal, 188). But since my brothers feel that a declaration should be granted to the appellants I do not wish to differ from them in this formal matter, but I would confine the declaration only to this that the services of these appellants could not' have been terminated by the' Inspector‑General of Police without giving them an opportunity to show cause against such termination. From declaration, however, it should not be inferred that the Inspector‑General of Police was bound to appoint these appellants to the temporary posts when they were renewed from 1st March 1953, or that they have any legal right to the salary for the remaining term of the posts which they were occupying at the time of their removal. The Inspector‑General of Police was under the impression that because the appellants were temporary employees it was not necessary to draw up formal proceedings against them. So far as the rules go, he was right in taking that view but an enquiry under the rules is entirely different from an opportunity to show cause against the action proposed td be taken against a Government servant under Sub section (3) ‑of section 240 of the Government of India Act, and it is for the non‑compliance of this provision that the order terminating their services is being declared to be invalid: I would, therefore, accept the appeal of these appellants to the extent indicated but make no order as to costs. The appeal of Aslami and Hashmat Ali will be dismissed but in their case also there will be a similar order as to costs. SHAHABUDDIN, J.‑

I agree with the orders proposed by my brother Cornelius and the reasons given by him. CORNELIUS, J.‑

This judgment will dispose of seven Appeals Nos. 7 to 13 of 1956, the appellant in each case being, an ex‑police officer employed by the Karachi Administration. Their names in order of the appeals, together with the, details of their appointments are given below. Nurul Hassan the first appellant was appointed as a Sub‑Inspector of Police by the Sind Provincial Government on the 29th June '1948, and was transferred to the Karachi establishment on the 14th August 1948. He served in the Karachi establishment continuously up till the 31st December 1952, when his services were dispensed with by means of a peremptory notice, effective on the 31st December 1952. The second appellant Amanullah Khan Sherwani was similarly selected for appointment under the Sind Government on the 29th June 1948, and was transferred to the Karachi establish ment on the 14th August 1948, and continued to serve until his services were dispensed with in the same way and from the same date. Habib Ahmed, the third appellant was selected for appointment as an Inspector of Police and posted as Additional Motor Vehicles Inspector, Karachi by order dated the 19th July 1948. His services were transferred to the Karachi Administration in April 1950, and he too was summarily removed from service in the same manner and with effect from the same date as the others. Qadir Ahmed Siddiqi received his first appointment as Sub‑Inspector of Police on the 29th June. 1948, and‑was appointed to the Karachi establishment by order dated the 18th August 1948, and continued to serve in that establishment until the 31st December 1952, when his services were summarily dispensed with. Kbader Basha Aslami the fifth appellant received an appointment in the Karachi Police inspector by order dated the 8th October 1949, and served until the 31st December 1952, when his services were summarily dispensed with. Akram Abbas the sixth appellant received his first appointment as Sub‑Inspector in the Sind Police oil the 4th July 1948, and was posted to the Karachi establishment, by order dated the 21st September 1948, from which date he served in the Karachi Police until the 31st December 1952, when his services were summarily dispensed with. The last appellant Hashmat Ali was appointed as Assistant Sub‑Inspector of Police in Karachi on the 25th October 1949, and received promotion to the post of Sub‑Inspector of Police on the 27th Marzh 1952. He too was summarily removed from office by a similar order made on the same date as in the other cases. The terms of the order of dismissal are of great importance. It reads as follows :‑ "The work of the following temporary Inspectors; Sub Inspectors and Assistant Sub‑Inspectors having been found unsatisfactory, their services are dispensed with, with effect from the 31st December 1952." Then follows a list of twenty names including each one of the present appellants. The order is dated the 30th December 1952. These appeals arise out of suits brought by the seven appel lants to challenge the validity of the termination of their services, on the basis that there had been contravention of a provision of the Government of India Act, 1935, i.e., subs section (3) of section 240, which was applicable in the case of the plaintiffs through its having been incorporated in sub‑rule (12) of Rule 1284, in the Bombay District Police Manual being a set of rules applicable to subordinate police officers, and made under the Bombay District Police Act, 1890. It is common ground that these rules are applicable to the subordinate ranks of the Karachi police force. It was contended that the order of the 30th December 1952 had been passed in each case, except one, without holding departmental proceedings against the plaintiff, to establish that his work was unsatisfactory and without calling upon him to show cause against the action proposed to be taken against him vie, removal from his post. The exception is the case of Hashmat Ali, and the details are of considerable interest, in relation to the plea raised on behalf of the Federa tion of Pakistan in each case that the termination of services was in accordance with the relevant rules and law. Hashmat Ali averred in paragraphs b to 13 of his plaint that on the 7th July, 1952, he was placed under suspension and on the 29th July, 1952, he was presented with a charge‑sheet: alleging, firstly disregard of standing orders regarding the registration and investigation of cognizable offences, secondly, intentional omission to arrest and confine a person accused of cheating and thirdly, being in a conspiracy with a notorious gang of cheats to aid them in their criminal activities. Departmental: proceedings were conducted by a Deputy Superintendent of Police who found only the first charge proved, and recom mended certain punishment. A copy of these findings, wan sent to Hashmat Ali by order dated the 17th December 1952 and be was asked" to show cause within ten days as to why he should, net be dismissed from service if the charges as to proved, against him." Hashmat Ali put in his reply which is printed at page 171 of the paper book. In this he attempted to show that, the finding against him on the first charge was incorrect, and requested that he be reinstated ax recommended. At page 159 of the paper‑book there is an order requiring Haskmat All to appear before the Superantenden4 of ; Police on the 29th December, 1952 "to make final statement in connection with departmental, proceedings held against him." This order is dated the 27th December 1952. There is no evidence to show whether Hashmat Ali appeared on the 29th of December as directed, and even for the purpose of complying With subsection (3) of section 240, Government of India Act, 1935, such appearance was unnecessary since ail opportunity had already been allowed to him to show cause against the action. Proposed "if the charges are proved against him. It is to be noted, however, that even as against Hashmat Ali, the Federation of Pakistan based its case on non‑applica bility of section 240 subsection (3), and sub‑rule (12) of Rule 1284 of the Bombay District Police Rules. It Wine not pleaded, for obvious reasons, that in the case of Hashmat Ali there had been compliance with these provisions of law. The judgment of the trial court shows that the point was not referred to In the lintel argument for the, Federation of Pakistan, and the learned Judge dealt with the case of Hashmat Ali on the sawn basis as that of the remaining six plaintiffs. It appears to have been overlooked that the facts relating to the charge‑sheeting or, Hashmat All, the departmental proceed ings against him, and the report which followed as well as the action takers thereon, constituted compliance with the precise interpretation of section 240, subsection (3) of the Government of India Act, 1935, upon which the decision of the trial Court was based It was on the ground that each of the plaintiffs was entitled to the benefit of section 240, subsection (3), or in the alternative of sub‑rule (12) of Mule 1284 of the relevant Police Rules that the learned Judge came to the conclusion that is no case could the order of removal or discharge be passed without departmental inquiry and the other inquiry enjoined by section 240 (3). He granted the plaintiffs a declara tion that the older of the 30th December 1952, was illegal, void and inoperative, and that the "plaintiffs continue to be in service of the Federation of Pakistan." The appellate Bench reversed this decision and dismissed all the suits. It will be convenient to state briefly the various conten tions raised before each of the two Courts below, and the manner in which they were dealt with by those Courts. The first contention dealt with in the judgment of the trial Court is that in view of section 243 of the Government of India Act, 1935, the provisions of section 240 of that Act have no application to the plaintiffs. Section 243 is the last of four sections commencing with section 240, which make general lions for the civil services. It provides that "notwithstanding anything in the foregoing provisions of this Chapter "(i.e., m sections 240, 241 and 242)" the conditions of service of the subordinate ranks of the various police forces in Pakistan shall be such as may be determined by or under the Acts relating to those forces respectively." The trial Court was of the opinion that the provisions of section 240‑ would apply to the plaintiffs, as members of ‑the subordinate ranks of the Karachi Police, if there were no contrary provisions of the nature contemplated by section 243 of the Government of India, Act; or in other words that any provisions falling under section 243 would, to the extent of repugnancy, prevail against the statutory provisions of section

240. This conclusion is strongly based upon the decision of the Judicial Committee !n the case of Suraj Narain Anand (75 I A 343=P L D 1949 P C 1). There, an appeal by a dismissed police officer of the subordinate ranks had been allowed by the Federal Court of India on the ground that the officer had been dismissed by an authority subordinate to .the authority by whom he had been appointed. The action taken was In direct contravention of subsection (2) of section 240, and the Federal Court had granted a declaration that the order of dismissal was void and inoperative. In appeal, the N.‑W. F. Province bad at first satisfied the Judicial Committee that the dismissal was in compliance with a rule whose validity was preserved by section 243 and accordingly the Privy Council made a recommendation that the appeal should be allowed. Later it was proved to the satisfaction of the Judicial Committee that on the date when the order of dismissal was made, there was, no such rule in existence and thereupon the Judicial Committee altered its decision and upheld the decree of the Federal Court of India. That is a clear instance of the application to a c1ember of the subordinate. police force of certain provisions contained In section 240, m the absence of any provision on that point uncle section

243. I shall have occasion to refer again to the case of Suraj Narain Anand. Here I would like to mention that the point was not dealt with in terms in the judgment of the appellate Bench of the Sind Chief Court. It was argued by Mr. Anwar appearing for the Federation of Pakistan that the words "notwithstanding anything in the foregoing provisions of this Chapter" should be construed to mean that "nothing contained fn the foregoing provisions of this Chapter shall affect the conditions of service of the subordinate ranks of the various police forces in Pakistan", and that these conditions of service were to be determined by or under special Acts relating to those forces. The argument is not a tenable one. The language used is clearly designed to operate on the basis of repuguancy, and the view of the trial Court on this point appears to be clearly correct. The second argument raised in the trial Court was that the provisions of section 240, Government of India Act, 1935, of sub‑rule (12) of Rule 1284 of the relevant rules and rule 165‑A of the Sind Civil Services Rules have no application' to temporary public servants. The reply made by the learned trial Judge was that the provisions relied upon "do not at all make a distinction between permanent and \ temporary civil servants." ‑ He then proceeded to cite a number of authorities mostly of the post partition Indian Courts, in support of his view. The learned Judge considered that discharge from service was akin to "removal from service" which itself is included within the meaning of the word "dismissal" vide section 277, Government of India Act, 1935. The word "removal" appears also In Rule 1284 of the relevant Rules. When it was urged before him, on behalf of the Federation of Pakistan that for termination of service to amount to removal from service, there must be an allegation of misconduct, the learned Judge replied by means of a reference from the case of Shyamlal v. The State of Utter Pradesh (AIR 1954 SC 369) where the learned Judges had held that removal "generally implies that the officer is regarded in some manner blame‑worthy or deficient that is to say, that he has bead guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do." Acting on this principle, the learned Judge thought that the plaintiffs fell within its scope as they had been discharged on account of their work being found unsatisfactory. This point is not dealt with in the judgment of the appellate Bench in clear terms. The learned Judges were content to hold ‑on interpretation of Rules 1270, 1278, 1284 and '1293 of the Police Subordinate Service Rules that in the case of temporary police officers, no regular proceedings were necessary to be drawn up because "no appeal lies against the dismissal or removal of a person holding a temporary post'?. It seems that in the view of the learned Judges "regular proceedings" means the procedure of departmental inquiry which is enjoined by Rule 1284 read with Rule 1278. The argument is somewhat as follows. Because no appeal lies against the dismissal or removal of an officer holding a temporary post, and because clause (3) of Rule 1278 lays down that "in all cases In which an appeal lies, regular proceedings should be drawn up in accordance with these rules", therefore It follows that in the cases in which no appeal lies regular proceedings area not to bee drawn p in accordance with the rules". Referring next to Rule 1284, which lays down the general outline of procedure in inquiries with a view to departmental punishment and in particular to sub‑rule (12) of this rule which applies the provisions of subsection (3) of section 240 of the Government of India Act, the learned Judges held that because Rule 1278 as construed by them prevented the holding of regular proceedings in cases where the final order was of a non‑appealable nature, therefore, Rule 1284 including its sub‑rule (12), which in effect embodied the substantial provisions of section 240 subsection (3), lead no application to the cases of the plaintiffs. An alternative argument under section 31‑A of the Bombay District Police Act was rejected. By section 31A it was sought to make the provisions of the Sind Civil Service Rules applicable to the case, and the learned Judges decided that this could not be done because in elect, the section merely incorporated the provisions of Rule 55 of the Sind Civil Services (Classification, Control and Appeal) Rules, whose function in the view of the learned Judges "is to lay down the procedure to be followed in departmental inquires which is also the purpose of Rule 1284." As for the argument that under subsection (3) of section 240 it was necessary that at least an opportunity should have been provided to the police officers to show cause before they were dismissed, that provision was not applicable to the cases before the learned Judges, as "that procedure is meant only for minor punishments while removal or dismissal are among the major punishments as appears from the notes to Rule 1270." The reasoning seems, with respect, to be faulty on the face of it. On this precise point, the trial Court had expressed the contrary view in the following words:‑ "It was argued that no regular proceedings need be drawn in cases where no appeal lay and under Rule 1293 no appeal lay from dismissal or removal of a temporary officer. The words "drawing of proceedings" do not exclude applicability of sub‑rule (12) or sub‑rule (7) of Rule 1284. Besides sub‑rule (12) came into existence much later and sub‑rule (3) and sub‑rule (12) must be read together to avoid any inconsistency. Even In summary proceeding where everything need be merely oral sub‑rule (12) can be applied". 'The question whether the order terminating the services of the seven plaintiffs was an order of dismissal or removal within the meaning of the Government of India Act, 1935, does not offer any particular difficulty. The formula employed was that of saying that the services of these persons were "dispensed with", and there is, of course, no specific provision in that Act dealing with the process of "dispensing with" the services of ‑persons bolding "civil posts under the Crown in Pakistan". Yet, it seems to me that, by its effect, the formula is clearly one by which an effective removal of the incumbent of a civil post in Pakistan was brought about. Clearly the service of each of the seven plaintiffs was determined by means of the order which they sought to challenge. Both effectively as well as categorically, the order is indistinguishable from an order of dismissal or removal. It supported by a statement of the reason for the determination of service in each case, viz., v, that the work of the public servants in question had been found p unsatisfactory. It is of cardinal importance to note that in the order by which each of the plaintiffs was selected for appointment in the Sind Police or the Karachi Police as the case may be, nothing was said as to the duration of the appointment. It was elicited in the course of the argument that under the conditions prevailing in the early stages of the establishment of the Karachi Administra tion as a separate unit, the entire police staff of Karachi from the highest level downwards was sanctioned for administrative and financial purposes, from year to year. Thus Exh. No. 5/8 at page 9d of, the printed paper‑book is a letter from the Federal Government to the Administrator of Karachi, dated the? 7th September 1949, conveying the sanction of the Governor‑General to a great number of posts in the Karachi police ranging from three Superintendents of Police down to clerks, peons etc., "with effect from the 2Jrd July 1948, or the date of the appointment of the incumbent which ever is later up to the 28th February 1950". Pads. No. 5/10 is a letter sanctioning the continued retention of the staff of the Karachi Police for a further period of one year up to the 28th February 1951. This letter is dated 24th March 1950. There is another letter Exh. No. 5/7 appearing at page 92 of .the paper‑book which shows how the Federal Government dealt with the difficulties created by want of formal sanction to the retention of posts held by police officers of the Karachi Police, who had in consequence not received payment of their salaries for several months. The method adopted was to convey sanction to the disbursement of pay and allowances sanctioned by the former administration, viz. the Government of Sind, "on provisional basis to those police officers of the Karachi, Police to whom payments have not been made for the last few months for want of Government sanction." It has been necessary to mention these orders, because, it is important to avoid tie impression that the plaintiffs held their appointment from year to year. Exh. No. 5/7 makes it clear that although‑formal sanction, for financial purposes, to the retention of the entire staff of the Karachi. Police was, at that time, being given annually, yet it was not the case that upon the expiry of such, sanction, the officials holding posts on the staff also found their own service determined by such expiry. Sanction was apparently being given somewhat irregularly, but It needs no emphasising that the retention of a proper staff of police for the Karachi area could not be, made dependent upon the Issue of necessary formal orders within time, and consequently, as appears from Exh. No. 5/7 despite the expiry of sanction, officers on the staff continued to hold the sanctioned posts and presumably to perform the functions attached to those posts, and indeed: for some months, did so without receiving their salaries, in the, confident expec tation that the sanction would be, extended. To. Mitigate the, inconvenience of not being Paid their salaries, the Federal Government issued a special sanction ors a provisional basis, which was granted independently of a decision being taken and communicated regarding the extent and nature of the staff that was to be sanctioned. In my opinion, nothing can prove more clearly that the appointments of persons on the staff of the Karachi Police, whether permanent or, as in the case of the seven plaintiffs, temporary but of undefined duration, were independent of the duration of the posts which they held, in terms of the Government sanction for those posts. In actual fact, the number of posts on the Karachi Police establishment was, as stated at the; Bar, never reduced during the material times, but on the other hand, the force was being continuously expanded. Therefore, it does not appear to be possible to say in respect of any of the seven plaintiffs that he became at any time superfluous to require ments owing to there being no post available to which he could be appointed, or that, in consequence, his own appointment was terminated for such a reason. The question whether the termination of service of a temporary officer,, the duration of whose service was undefined, falls within the mischief of 'sections 240, 241, 242 and 243 of the Government of India Act, 1935, needs to be considered with some care. There are judgments of Courts in Pakistan as well as in post‑partition India on the subject, but owing to the, facts, as well as the grounds of decision, being different in each case, it is desirable to attempt to find an answer by the process of construc tion of the sections themselves. Section 240 relates generally to persons who are; members of a Civil Service of the Crown in Pakistan or who hold any civil post under the Crown in Pakistan: Its provisions are well known, namely that every such person holds office "during His Majesty's pleasure"; that no such person shall be dismissed (which includes also removed) from his service by any authority subordinate to that by which he was that with two exceptions, no such person shall be (which includes removed) or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him ; and lastly, qualifying the provision that office was held "during His Majesty's pleasure" that in the case of experts, their contract of service may provide for the payment of compen sation should the post be abolished or the incumbent required to go before the expiration of the agreed period. Section 241 deals generally with recruitment and conditions of service. Subsection (1) provides that the Governor‑General and the Governor or such persons as they may direct shall in the general case, make appointments to civil services and civil posts under the Federation and under the Provincial Govern ments respectively. Subsection (2) lays down that the con ditions of service of persons "serving His Majesty in a civil capacity" shall be reduced to rules to be made by the Gover nor‑General and the Governor respectively, or by persons duly authorised in this behalf by the Governor‑General or the Governor. There is a proviso which contains the solo reference to temporary servants, appearing in any one of these four sections. Since it is of vital importance for the construc tion of this section from the point of view of this case I reproduce it below:‑-- "Provided that it shall not be necessary to make rules regulating the conditions of service of persons employed temporarily on the terms that their employment may be terminated on one month's notice or less, and nothing in this subsection, shall be construed as requiring the rules regulating the conditions of service of any class of persons to extend to any matter which appears to the rule‑making authority to be a matter not suitable for regulation by rule in the case of that class". Sub‑rule (3) which is in mandatory form, prescribes certain matters to be incorporated in every set of rules made under subsection (2). With reference to persons who were in service before the 1st April 1937, on which date Part III of the Government of India Act came into operation, the rules were to be so framed as to secure that the existing conditions of service of such persons should not be altered to their disadvantage except by order of an authority which was competent to make such a change on the 8th March 1926, and failing such authority, by the Governor‑General or the Governor. Clause (b) of the subsection furnished additional protection to this class of public servants viz., that his right of appeal in respect of any order ‑ bye. which he was punished or formally censured, or by which his conditions of service were altered or interpreted to his disadvant age, or which had the effect of terminating his appointment otherwise than by the process of superannuation, were not to be prejudiced as a result of the coming into operation of the Government of India Act, 1935. Clause (c) made a specific Provision of a general nature regarding the right of appeal and is in the following terms :‑ "That every other person serving His Majesty in' a civil capacity shall have at least one appeal against any such order as aforesaid, not being an order of the Governor‑General or Governor". The particular importance of this clause for the purposes of the present case is that it has application to every person serving His Majesty in a civil capacity, except persons to whom the proviso to subsection (2) might have application i.e., persons whose employment was temporary and was liable to be terminated on one month's notice or less. The requirement of the Constitution in respect of other "civil servants", subject to any special provision in the Government of India Act and Acts of the appropriate legislature, was that 'in relation to orders of the type mentioned in clause (b) of subsection (3) every such person should be provided ' by the rules embodying his conditions of service with at least one appeal. It seems to me that on the basis of the proviso to sub section (2) and the revisions of subsection (3) of section 241 it can be conclude beyond any doubt, that temporary servants whose appointments were of undefined duration are within the class whose conditions of service need to be pres cribed by rule, and who must be provided with at least one appeal against any order of punishment, censure, termination of appointment otherwise than by superannuation, and altera tion or interpretation to their disadvantage of any condition of service applicable to them. It is not necessary for the purposes of this judgment to state the contents of the remaining subsections viz., subsections (4) and (5) of section 241 or the provisions of section 242 which relate to officials of the Railway, Customs, Postal and Telegraph Services, and to officials of Courts. Section 243 however, is o importance,, in this sense that, as has been seen already, it lays down that with special reference to members of the subordinate ranks of the police forces in Pakistan, the provisions of sections 240 and 241 shall have no application where there is in existence E a contrary or repugnant rule made applicable to such persons by or under the Acts relating to the forces to which they belong. Thus, with specific reference to the present personnel, it is provided by Rule 1293 of the relevant rules that a temporary member of the subordinate ranks of the police force governed by the Bombay District Police Act, 1890 shall have no appeal against an. order directing his dismissal. This is in contravention of clause (c) of subsection (3) of section 241 but, by operation of section 243, Rule 1293 prevails in the relevant respect. I have already expressed the view that section 243 only operates on the basis of repugnancy. In other words the provisions of sections 240 and 241 are available to persons subject to the rules here in question, to the extent that those provisions do not conflict with any rule applicable to them. It is clear that the rules as a whole have application to temporary members of the subordinate ranks of the police, and it seems to me to admit of no doubt that in the absence of repugnancy, such temporary members are entitled to the benefit of provisions contained in section 241, and for the same reason, also in section 240 of the Government of India Act. It is from that point of view that I proceed now to examine Rule 1284, and particularly sub‑rule (12) of that rule, whose language seems to me to bear the highest significance for the purposes of this case. Rule 1284 appears in a separate section of the ruled under the heading "Enquiries with a view to departmental punishment". It lays down the general outline of procedure in departmental enquiries up to the stage of punishment, and is divided into fourteen sub‑rules. The first four sub‑rules are concerned with preliminary enquiries preceding, the framing of a charge, and sub‑rules (5) and (6) provide for copies of the charge and necessary documents. to be given to the respondent who is to be asked to plead to it. In case he pleads guilty "there remains only the passing of the order, after a brief summing up, by the officer competent to inflict punishment". Where he pleads not guilty, he has the right to cross‑examine prosecution witnesses who deposed against him and to gall witnesses in his own defence. In the words of Note 3 to sub‑rule (7) "the enquiry would resemble as closely as possible a judicial trial, but with these important differences, viz. the statements would not be taken on oath and the officer holding the enquiry need not necessarily follow strictly the provisions of the Criminal P. C. or the Evidence Act." Sub‑rules (8) to (10) deal with the completion of the enquiry, up to the stage where, on the conclusion of defence evidence, the respondent is allowed to submit his defence in writing. By sub‑rule (11) the officer conducting the enquiry is directed to submit his report along with his recommendations to the proper authority. The existing sub‑rule (12) as a replacement in 1942‑43, With a further amendment in 1945, of a sub‑rule of the same number inserted in 1942, in place of the original sub‑rule (12) which merely prescribed the order in which notes of the departmental enquiry were to be kept. It is of interest to note the changes effected in this sub‑rule, as there seems to follow very closely the result of the case relating to the dismissal of Mr. I. Y. Lull (PLD1948PC152). The rule inserted in 1942 required that before passing an order of dismissal or reduction in rank, the officer competent to inflict punishment should furnish the defaulter with a reasonable opportunity of showing cause against the action proposed to be taken against him but this should not be necessary where dismissal or reduction in rank was on the ground of conduct which had led to conviction on a criminal charge or where the giving of such an opportunity was not reasonably practicable. It was further enjoined that the giving of such additional opportunity should not involve the holding of a second regular enquiry. On the latter point, it seems that the view of the Government underwent a change shortly after, as shown by the form of the new sub‑rule (12) inserted in the same year. This sub‑rule starts with the words "In accordance with section 240, subsection (3) of the Government of India Act, 1935, no Government servant can be dismissed, removed, discharged or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." .Exceptions were provided in the case of persons convicted on criminal charges and others to whom the giving of such an opportunity was not reasonably practicable. The instruction was added that "when a defaulting Government servant Is called upon to offer his defence in respect of charges against him for which the penalty considered prima facie appropriate is dismissal, removal, discharge air reduction in rank, he should also be asked at the same time to show cause against the imposition of penalty considered prima facie appropriate should the charges against him be held to have been proved." A noteworthy feature of the form of words adopted is that the express intention is to embody the provisions of section 240, subsection (3), in the rules themselves. This is emphasized by the retention to a great extent of the form of words used in section 240, subsection (3) itself, whose provisions were bodily transferred into the rules and declared of binding effect by the use of the words "in accordance with section 240, subsection (3)". The suggestion that the opportunity to show cause against punishment, provided by section 240, subsection (3), could be appropriately given at the time when the, officer was called upon to offer his defence in respect of the charges against him appears to have been in accordance with the view taken up to that time by the Courts in the case of Mr. I. M. Lall (PLD 1948 PC 152). By 1945, however, the Federal Court of India had heard the appeal and a majority of the Court had decided that this opportunity could not be given at any time earlier than after the conclusion of the enquiry, and after the punishing authority had arrived at conclusions regarding the appropriately. Accordingly, the last amendment of the 7th August ly4.j, provides clearly that this opportunity is to be furnished after the enquiry has been completed and any representation made by the defaulter should be taken into consideration before final orders are passed. Two questions arise in respect of Rule 1284. The first is does the form of words adopted in sub rule (12) have the effect of incorporating the relevant provisions of section 240, subsection (3), as a new rule, or must it be understood as overcoming the opening words of section 243 viz., "notwithstanding anything in the foregoing provisions of this Chapter", and making section 240, subsection (3) directly applicable in its terms to subordinate police officers ? Secondly is the requirement of reasonable opportunity to show cause against a certain proposed punishment a mere matter of procedure within a departmental enquiry under Rule 1284, or is it not rather to be regarded as falling outside the departmental enquiry, which must necessarily have been completed before the occasion arises for the implementation of this sub‑rule ?. I feel no hesitation in holding that the language of sub‑rule (12) of Rule 1284, so far from converting the statutory provision in section 240, subsection (3) to a mere rule framed under the Bombay District Police Act, 1890, has the effect of overcoming the non obstante clause in section 243, by directly incorporating the provisions of section 240, subsection (3) in the rules, and adding a direction to officers concerned regarding the manner in which this requirement should be carried into effect. It is not a rule which these officers are being required to operate. The words M of sub‑rule (12) of Rule 1284 make it abundantly clear that the officers are required to ‑carry out the provisions of section 24 subsection (3). On this question, my conclusion therefore is that by its translation into Rule 1284, section 240, subsection (3) did not lose any of its force. The words adopted to effect the transference are to be construed as giving effect to section 24 subsection (3) as a constitutional provision, and adding words of guidance to the officers concerned for the due implementation of that provision. The above answer is of direct assistance in finding the correct answer to the second. Question Although Rule 1284 is concerned largely with procedure in departmental enquiries, it yet is perfectly clear that the provision in sub‑rule (12) is outside the scope of the departmental enquiry, and indeed its operation is intended to take effect after the conclusion of the departmental enquiry. It purports to allow to the respondent, a right reserved by the then Constitution Act, which itself is not concerned with any matter of procedure, but confers a substantial and independent right directly upon the public servants concerned. I am clearly of the opinion that the giving of an opportunity under section 240, subsection (3) to these subordinate officers a required by Rule 1284, sub‑rule (12) is not a mere matter of proce dure, but constitutes a substantial and independent right, belonging to every such officer who finds himself in the situation envisaged in the sub‑rule. It is now possible to find an answer to the question whether the appellants or any of them possessed a right of action against the Crown. The argument raised on behalf of the respondent is that public servants do not possess any vested right in the rules by which their conditions of service are governed, and reliance was placed on the case of Venkata Rao (64 I A 55). In that case it was found as a fact by the Judicial Committee that the enquiry held against Venkata Rao in consequence of which he was dismissed was defective in almost every way. No charge had been framed. Witnesses were not examined in the presence of the accused. Action was based mainly upon a written statement furnished by one Sitaramayya who did not appear as a witness to be cross examined. The findings of the Judicial Committee were that a "most definite and salutary rule had been disregarded in most essential respects", that it could not be said that what was done as "well enough", and that there was no valid excuse for the shortcomings found. Yet the Privy Council dismissed the appeal on the ground that the statute gave no right enforcible by action to hold office in accordance with the rules. Among the reasons which they gave for coming to this conclusion are the following :‑

"(1) that to argue that the employment was at His Majesty's pleasure, yet with an added contractual term that the rules were to be observed was too far‑reaching and artificial ; (2) the rules were multifarious, and very particular, and all of them were capable of being changed ; it would be incon venient if the Courts interfered with the Government "in the most detailed‑work of managing its services"; (3) that the section itself makes careful provisions for redress of grievances on the executive side ; and (4) the words in section 96‑13, Government of India Act, 1915, which rendered the provisions of that section "subject to the rules" were not intended to give the rules the validity of a statute but were merely an assurance against capricious action." Yet one perceives in the judgment a note of regret that, on the view they took, the Board could not themselves give redress to the appellant. They did the next best thing they incorporated In their judgment a recommendation to the executive government to provide redress. Expressing the hope that the words "subject to the rules" would be implemented by the Government, in their character of a solemn assurance against arbitrary action, both in letter well as in sprit, so that rights of appeal should be "real" rights they noted further that they had observed "unfortunate" uses of individual mistake showing "serious and complete failure to adhere to rules" and concluded by remarking that "to give redress is the responsibility and their Lordships can only trust wall be the pleasure of the executive Government". On the same day the seine Board in the case of Rangachari (64 I A 40) where the violation alleged was of a provision contained in section 96-B of the Government of India Act, 1915 while finding that there had been such a violation and that the order of dismissal in the case was invalid, yet declined to allow the appellant a declaration to that effect, giving the following reasons:‑ (a) As the questions of fact and law had been decided, a declaration could have no greater effect than the decision ; (b) Restoration of the dismissed officer to his office was not possible by season of his ill health as well as lapse of time (the essential question was not of restoration to active service , but restoration of a pension which bad been asked for and allowed with all due formality by the Government) ; (c) As regards the pension, the responsibility "of doing right' rested with the Government ; (d) That by thus refusing to enforce the statutory provision in section 96‑B, no risk was incurred of that safeguard becom ing nugatory and useless because the Judicial Committee was satisfied that the safeguards provided by the statute and the consequential rules "are generally observed and fulfilled" although in the case before them this had "unfortunately" not been done, yet there was ample time and opportunity for the executive authorities to make amends "now that the Important questions of principle are disposed of". It is a sufficient commentary upon this decision that when some four years later, the Federal Court of India had before it tire similar case of Suraj Narain Anand (1941 F C R 37), and the question arose that despite the clear violation of the provisions of subsection (2) of section 240, Government of India Act, 1935, the Court should not giant the appellant a declaration that the order of his dismissal was void and inoperative, the learned Judges observed as follows :‑ "The plaintiff claims that he is entitled to a declaration to that effect. The decision in Rangachari's case seems to us to support this contention, though a declaration was in fact refused in that case on other grounds . . . . . It seems to us best in the circumstances to say that the plaintiff was at least entitled to a declaration that the order of dismissal passed against hint was void and inoperative and that the Courts below were not justified in dismissing the suit as wholly unsustainable." When in 1948 the same case carne before the Judicial Committee on appeal by the Provincial Government, the decision of the Federal Court of India was affirmed, the following obser vation being made by their Lordships regarding the effect of Rangachari's cast :‑ "In that case (i.e., the case of 1. .M. Lall) the question arose as to the effect of non‑compliance with the provisions of sub section (3) of section 240 a 9d it was held that subsection (3) was a statutory term off service of the Crown, which qualified the provisions of subsection 1) of section 240, and was mandatory and not permissive. On' the principles of this decision and the decision in Rangachari's care it is equally clear that subsection (2) of section 240, though It obviously does not apply in the case of dismissal by the Crown itself, is a statutory term of the service of the Crown, and is mandatory and not permissive, It follows that the dismissal of the respondent by an authority subordinate to that by which he was appointed would be unlawful and Inoperative under that section. Following on this conclusion, the Judicial Committee did not act as they had done in Rangachari's case but confirmed the, declaration which had been granted by the Federal Court. The position was different in Venkata Rao's case, where the right claimed was a right to a quasi‑ Judicial trial before being deprived tai status as a public servant, on grounds of misconduct tar other sufficient ground. The claim was based on a rule contained in the Civil Services Classification Rules, which themselves were statutory rules made under section 96‑B of the Government of India Act, 1915. By expression In section 96‑8, the rules were to apply In derogation of the principle that "every parson in the Civil Service of the Crown in India hold office during lie Majesty's pleasure, The importance of such an enquiry, to precede a decision involving lose of status by a public servant Is undeniable. The essential stops In such an enquiry have boon expressed Ins general terms or, the clearest Import by Viscount Simon L. C. In the case General Medical Council v. Spackman (1943 A C 627), as follows :‑‑ "Unless‑Parliament otherwise enacts, the duty of considering the defence of a party accused, before pronouncing the accuse to be rightly adjudged guilty rests on any tribunal, whether strictly judicial or not which is given the duty of investigating his behaviour and taking departmental action against him. The form in, which this duty is discharged‑‑‑e.g., whether by hearing evidence viva voce or otherwise is for the rules of the tribunal to decide, What matters is that the accused should not be condemned without being first given a fair chance of excul pation. It is clear that the enquiry which preceded the dismissal In Venkata Rao's case did not satisfy the statutory rule in question, or even the minimal requirements indicated above. While acceding.; with respect, to the observation that rules applicable to public servants, being multifarious in their character, and liable to change are consequently not suitable in all cases for enforcement by civil action, and agreeing also that the Courts should not interfere with the Government in its detailed and delicate task of controlling its employees, the fact nevertheless stands out that the vice in Venkata Rao's case, was quite fundamental in character, involving violation of what may rightly be described as an unvary ing rule of obligation, attaching to the function of divesting any person of a status belonging to him. It is possible that in the circumstances then existing, the mode of providing relief indicated by the Judicial Committee in Venkata Rao's case, was as effective as the award of the declaration sought by the plaintiff might have been. The grant of a declaration is a matter within the discretion of a Court, and presumably, the Judicial Committee acted in awareness of facts and circumstances which inclined them in favour of refusing the declaration. One circumstance which weighed with their Lordships, ceased to be relevant after the Government of India Act, 1935, came into force. It appears clearly from the following passages extracted from the judgment in Venkata Rao's case :‑ "There is another consideration which seems to their Lord ships to be of the utmost weight. Section 96‑B arid the rules make careful provision for redress of grievances by administrative process, and it is to‑be observed that subsection (5) in conclusion reaffirms the supreme authority of the Secretary of State in Council over the Civil Service." "But while thus holding on the clear facts of `this case . . . . . . . their Lordships are unable as a matter of law to hold that redress is obtainable from the Courts by‑ action; To give redress is the responsibility; and their Lordships ban only trust will be the pleasure of the executive Government." The reference to the Secretary of State in Council; in relation to a public servant of the status of Venkata Rao, became obsolete with the passing of the Government of India Act, 1935, and the position underwent further material change in this respect in 1947 and later years. But in the present case, the contravention which is found is a contravention of sub‑rule (12) of Rule 1284, and I have already found that this rule is not an independent attempt to incorporate in the rules relating to the subordinate police service, the pro visions of section 240, subsection (3); but it represents in fact a bodily incorporation or section 240 subsection (3) within those rules, coupled with directions to the proper authorities as to the manner in which this constitutional provision was to be carried out. Consequently, an action would lie for contravention of sub 0 rule (12) of Rule 1284 following the case of Suraj Narain Anand. It is now necessary to deal with the argument whereby the appellate Bench of the Chief Court of Sind found it possible to avoid the application of sub‑rule (12) of Rule 1284 to the cases of the present appellants. That Bench, as has been seen, did not hold either that the order by which the services of the appellants were dispensed with was not an order of dismissal, or that the temporary officers of the subordinate ranks of the Karachi Police were not entitled, in general, to the benefits of the rules under the Bombay District Police Act. It was indeed` upon the opposite assumption in each of the above respects the the appellate Bench proceeded to construe Rules 1270, 1278, 1284 and 1293 respectively. The learned Judges came to the conclusion that the present appellants were not entitled to the benefit of sub‑rule (12) of Rule 1284, by reason of the fact that they were temporary officers. The disability appeared to the learned Judges to arise in the following way. They found the one of the provisions of Rule 1293 was that no appeal shall lie from the dismissal or removal of a person holding a temporary post. They next referred to Rule 1278 which they took to lay down general principles to be followed I or the holding of depart mental enquiries into the misconduct of police officers, In sub rule (3) of this rule they found a special case provision for which was made in the following words :‑‑ "In all cases in which an appeal lies, regular proceeding should be drawn up in accordance with these rules." On the basis of the rule, this learned Judges concluded as follows :‑ "It follows from this provision that in the cases in which no appeal lies, regular proceedings are not to be drawn up In accordance with the rules". Then they took up the examination of Rule 1284 which in their opinion furnished a "general outline of procedure in enquiries with a view to departmental punishment." The final turn in the argument by which the operation of sub‑rule (12) of Rule 1284 was avoided Is stated in the following words :‑‑ "It is in sub‑rule (12) of rule 1284 that the provision or principle of subsection (3) of section 240, Government of India Act has been applied enjoining reasonable opportunity to the person charged of showing cause against the action proposed to be taken in regard to him. Sub‑rule (12) of Rule 12184 cannot be availed of outside the procedure laid down in Rule 1284 or in cases in which by reason of the provisions of sub-rule (3) of Rule 1278 read with Clause (B) of sub‑rule (2) of Rule 1293, the procedure prescribed in Rule 1284 is not to be followed." The correctness of this argument is open to serious question. It proceeds in my opinion upon a faulty construc tion of Rule 1278, arising from misapplication of the rule of interpretation expressio unius est exclusio allerius. For the passage in sub‑rule (3) of Rule 1278 on which the learned Judges have relied is a special requirement applicable to a certain class of cases, and is expressed in affirmative terms, while the general rule on the subject Is contained in the opening words of Rule 1271 which read as follows :‑‑-- "While no hard and fast rule can be laid down to cover all cases likely to require the holding of departmental enquiries into the misconduct of police officers and the drawing up of proceedings under section 30 of the Bombay District Police Act, 1890, the following general principles arc enunciated for the guidance of officers, who must use their discretion arid, common sense In applying them to individual oases:" Then follow a number of clauses of which it will be sufficient to reproduce the first, to be read with that part of the third clause which has already been quoted. Clause (1) reads as follows :‑‑ "Default proceedings may be divided Into two classed on the analogy of the system In vogue in English law of trying cases summarily or on indictment, In the former class would fall those defaults tried summarily, I.e., in orderly room ; in the latter, all other defaults. From this, however, It must tact be inferred that a default usually tried summarily cannot under certain circumstances, be tried by the drawing up of pro ceedings," Clause (2) of the same rule indicates, by reference to the Punish ment3 awardable, those cases which may be tried summarily and those which must be "decided by proceedings." "Summary oases" can only and In three kinds of punishment, (a) caution, (b) reprimand and (c) extra drill or extra duty. In point of severity, these punishments cannot compare with the punishment of dismissal, and yet clause (1) enjoins that It must not be assumed that every default usually tried summarily cannot, under certain circumstances, be tried by drawing up formal proceedings. The learned Judges of the Appellate Reach appeal to think that any proceedings which might lead to the dismissal of a temporary officer, must necessarily be of a summary nature, I.e., in orderly room, and that the holding of formal proceedings Is barred. Even on that view soma kind of a proceeding, via, an opportunity for exculpation, was requisite. In the case of six out of the seven appellants, no opportunity of even this attenuated kind was allowed. But the view that formal proceedings are barred Is plainly wrong. The correct law on the subject Is that a later statute in the affirmative does not take, away an earlier Act, except whore a negative Is implied, The subject is discussed in Maxwell on the Interpretation of Statutes, Tenth Edition, at pages, 164 and

173. Postulating, firstly that "when the later of two general enactments is couched In negative terms it is difficult to avoid the Inference that the earlier one is impliedly repealed by it", and that even when the later statute is in the affirmative, it is often found to involve that negative which makes it fatal to the earlier enactment, the learned author further observed as follows ;‑ "it is laid down generally that when the later enact. moat Is worded in affirmative terms only, without any negative, express or implied, it does not repeal the earlier law." It seems obvious that where provision has been made in clear terms for the general case and in a following provision. worded In the affirmative, a provision is made for a particular class of cases, the rule of exslusio alterius has no application whatsoever. The later affirmative prevision must be limited in its application by Its own terms, and no indirect Inference may be drawn there a from to affect the principle laid down in the earlier provision, which, as we have seen, was to the effect that a large measure of discretion as to the degree of formality to be observed in holding departmental enquiries was left to the superior police officers, who were indeed told that even where punishment which could be inflicted might be only a caution or reprimand or extra drill or extra duty, there would be nothing wrong In holding a full enquiry Into the allegations and drawing up regular proceeding. That discretion must remain and cannot be taken awe on the basis of an Inference such as that raised by the learned Judges of the appellate Bench. Moreover, nothing In the nature of r. repeal of the earlier provision in Rule 1278 can be spelt out of the terms of clause (3) . . .. . of the same rule, for the simple reason that the words In clause (3) are affirmative and it is plain to my mind that they do not involve any negative either express or implied. It seems to me difficult to avoid the conclusion that in such cases as the present, the discretion vested in the competent authority could only be exercised properly`, if a formal proceeding were held. I am fortified to this opinion by the fact that when the authorities contemplated dismissing Hashmat. Ali, one of the appellants before us, an enquiry was ordered, and was conducted in full and formal fashion, i.e., by presentation of charges, proper opportunity to reply thereto, to hear and cross‑examine prosecu tion witnesses; and to present defence witnesses. The fact that what was then contemplated was dismissal does not appear to us to make a material difference. I have already held that the purported dispersing with services, on grounds of dissatisfaction with the work of the incumbents is, in material respects, indistinguishable from dismissal. The view that compliance with sub‑rule (12) of Rule 1284 is not conceivable unless the entire procedure provided by that rule was applied seems, with respect, to be clearly erroneous. For sub‑rule (12) of Rule 1284 incorporates a provision of the then Constitution Act into the rules, and that provision Is not one relating to proceedings at airy stage of a departmental enquiry, but comes into play only after that enquiry has ended, and the appropriate authority has even gone to the length of deciding on the basis of the investigating of scar's report, whether the fault found does or does not justify the imposition of punishment of dismissal or reduction In rank. The right is not one relating to procedure in the departmental enquiry. It is a substantial right of a fundamental nature, and is applicable to the implosion of the most drastic punishments, as a condition presecent. It remains to consider certain subsidiary arguments that were addressed to us. Mr. Anwar for the Federation of Pakistan drew our attention to the orders of appointment of twenty‑five Sub-inspectors including K. B. Aslam. This document is Exh. 5/1 at Eire I0` its second paragraph reads as follows :‑ All the officers who are being appointed as Sub‑Inspectors are on a temporary basis and will not be confirmed for a period of 1 years. The services of direct officers will be terminated any of them are found unfit to perform the duties of a Sub- inspector. They should note that it is not necessary to hold departmental proceedings against temporary officers." Reliance was placed on the underlined (italics) words as constituting a special condition of service, but it seems to mp to be clear that the words incorporate a statement of a general nature, applicable to all temporary officers, which as the above discussion will show, was factually inaccurate. Each of the six appellants who served , as a Sub‑Inspector did so for a period exceeding eighteen months, and in any case, the order of dismissal does not proceed on the basis that any of them were "found unfit to perform the duties of a Sub‑Inspector." The maximum period of service was 44 years, and some of the incumbents even received commendations during their service. On the other side, reference was made to certain circulars issued by the Government of Sind in which the policy of that Government in relation to the dismissal of temporary Government servants was stated with clarity. Exhibit 5/19 at page 105 of the paper‑book is a circular issued by the Government of Sind to the effect that section 240 subsection (3), Government of India Act, 1935 makes no distinction between a permanent and a temporary Govern ment servant, and therefore if the object' be to dismiss or reduce in rank a permanent or a temporary Government servant, all formalities required by section 240 subsection (3) of the Government of India Act 1935 and rule 55 of the Civil Services (Classification, Control and Appeal) Rules must be carried out as a condition precedent. In another order which is Exh. 5/22 the same Government laid down that District Superintendents of Police should disabuse themselves of the wrong notion that section 240 subsection (3) of the Constitution Act is not applicable to the subordinate ranks of the police force and the requirements of the section being mandatory "no Governments servant irrespective of the length of his service whether he is permanent, probationary or temporary and whether departmental proceedings are held or not can therefore be discharged, removed, dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to betaken in regard to him". I find it difficult to suppose that this attitude was peculiar to the Government of Sind, and is not shared by other Provincial Governments, or by the Central Government in relation to its own services. The plaintiffs weft careful also to place on the record several decisions by the Administrator of Karachi in the capacity of Inspector‑General of Police, Karachi, in appeals brought, by officers of the same category as the present appellants i.e., temporary officers of the same subordinate police, appointed for an indefinite period, who had been summarily dismissed. Exhibits Nos. 5/20 and 5/21 are documents of this mature, and in each case the Administrator f9usd that the appellant had been dismissed without being afforded an opportunity to show cause under section 240, subsection (3). In each case the appellant was reinstated. These circular orders and administrative decisions are of course not conclusive; for the purposes of the decision of the present cases, but they do show that provincial administrations in the Province of Sind and also in the Province of Karachi have over a considerable period accepted a certain position, which is entirely contrary to the position that was pressed before us on behalf of the Federa tion of Pakistan. I consider that the view of the law which is so clearly expressed in the' circular orders and the administrative appellate orders mentioned above is entirely in line with the statutory provisions on the subject. The conclusions at which I arrive may now be summarised briefly. I am clearly of the opinion that the Government of India Act 1935; contained in sections 240 to 243, self‑contained provisions of a general nature, affecting all public servants, both permanent as well as temporary. It is possible to construe out of these provision, the law applicable to the cases of the present appellants; and It is not necessary for this purpose to draw on the, general law of master and servant, or of contract, for the purpose of resolving the questions which here arise for decision It follows that the right conferred by section 240 (3) upon public servants should be available to temporary police‑officers in the subordinate ranks of the force, in the absence .of anything to the contrary contained in any other Act or satutory rule applicable to such personnel. (Section 243). The view that the benefit of an enquiry under Rule 1284 is denied to such persons, because they are temporary, and because sift order dismissing a temporary incumbent is not appealable, .i clearly, in my opinion, erroneous. The rule applies, and so fair from there being anything in it repugnant to 'section 240(3), it expressly implements that provision of the previous Constitu tion Act, In subsection (12) which contains guidance to' authorities concerned as to the manner of such implementation. There has been no compliance with this provision in the cases of six out of the seven appellants the seventh cast is that of Hashmat Ali, against whom there was an enquiry of specific charges of misconduct, involving dishonesty, and an adverse report, upon which he was asked to show cause why he should not be dismissed. This was on the 17th December 1952 and Hashmat Ali submitted a written reply (Exh. No. 5/19) at page 171 of the paper book), after which on the 27th December, he was asked to appear before the Superintendent of Police on the 29th December 1 52 "to make final statement". It is not known whether he made appearance, but the order of the 30th December 1952, terminating his appointment with effect from the following day follows soon enough after the enquiry of the 27th December to justify the finding that the termination of his services, on the ground of his work being unsatisfactory, was directly related to the proceedings in the enquiry which had commenced in July 1952. In the case of Hashmat Ali, therefore, the statutory require ment was clearly observed, and the order terminating his services cannot be avoided opt any ground available under section 240 (3) of the Constitution Act. In all the other cases, there was no compliance with this provision, and this gave rise to the cause of action in each case. It remains now only to consider what form the relief should take. The learned trial Judge in decreeing all the seven suits, awarded a declaration to the effect that the order dispensing with their services was void and inoperative, but added further that "the plaintiffs continue to be in service." I have come to the conclusion that Hashmat Ali's appeal must fail, though on a different ground from that which prevailed before the appellate Bench of the Sind Chief Court. As regards the other six appel lants Mr. Manzur Qadir was prepared to accept a slightly modified declaration. of the kind which was awarded in the cases of I.M. Lall (P L D 1948 P C 150) and Suraj Nurain Anand (P L D 1949 P C 1), and which in my view is better adapted for giving effect to conditions, affecting the, possibility of termination of the services of the appellants, which may have arisen on a date subsequent to the 31st December 1952, viz., a declaration that the order of the 30th December 1952 dis‑, pensing with their services, was illegal, void and inoperative. In the result, I would dismiss the appeal of Hashmat Ali, with costs. I would allow the appeals of each of the other appellants, Nurul Hasan, Amanullah Khan Sherwani, Habib Ahmad, Qadir Ahmad Siddiqi, Khadar Basha Asiami, and Akram Abbas, and grant each of them a declaration to the effect that the order of the 30th December 1952 dispensing with his services is illegal, void and inoperative. I think that each of these appellants should have his costs throughout. MUHAMMAD SHARIF.‑

I regret that I have not been able to agree with my Lord the Chief Justice in full. The principal question for decision in this case is whether the discharge of the appellants from service was in order and according to law and the rules on the subject. On the departure of the Hindu Government servants after the Partition, several posts in the police department fell savant and they were to be filled in. According to a circular issued on 28th of January 1948, it was directed that "the vacancies referred to above should be filled by the recruitment of refugees without discrimination as between people coming from different parts of the Indian Dominion". In pursuance of this direction, several persons were appointed, including the seven appellants. Noorul Hasan was appointed a Sub‑Inspector of Police on 29th of June 1948, and was later transferred to Karachi. Polio. on 15th of August 1948. Amanullah Khan Sherwani was appointed a Sub Inspector and joined his post at Karachi on 1st of August 1948. Habib Ahmad was appointed as an Inspector is Sind' Police in June 1948 and was transferred to Karachi on 20th of July 1948, as Additional Motor Vehicle Inspector, Karachi. Qadir Ahmad Siddiqi was appointed as Sub‑Inspector of Police at Karachi in August 1948: Khader Basha Aslami was appointed a Sub‑Inspector of Police in Karachi Administration on 8th of October 1949, and actually joined or: lots of October 1949. Akram Abbas was appointed as Sub‑Inspector of Police, Karachi, and joined as such at Tharparkar on 4th of July 1948 and was later transferred to Karachi. Hashmat Ali was appointed as Assistant Sub‑Inspector of Police on Ist of November 1949. 4n 30th of December 1952, the Inspector‑General of Police, Kirachi, passed the following order :‑‑ "The work of the following temporary Inspectors, Sub Inspectors and Assistant Sub‑Inspectors having been found unsatis factory their services are dispensed with, with effect from 31st December 1952". The above appellants are included in the order. According to section 29 of the Bombay District Police Act, 1890 (Act IV of 1890) the Act and the rules framed thereunder were made specifically applicable to Sind and Karachi). The Provincial Government or any officer authorised by subsection (3) in that behalf, may suspend, reduce or dismiss any member of the subordinate ranks of the police force whom he shall think cruel, perverse; remiss or negligent in the discharge of his duty or unfit, for the same . . . . . or who, by any act of his own, renders himself' unfit for the discharge of his duty". Sub‑rule (3) authorises the Inspector‑General and Deputy Inspector‑General to punish any member of the` subordinate ranks of the police force of, and below the grade ' of Inspector under subsection (1). A District Superintendent shall have authority in respect of any police officer subordinate to him below the grade of Inspector. Rule 33 of the Sind Civil Services Conduct, Discipline and Appeal Rules lays down penalties for good or sufficient reasons to be imposed upon any ‑member of the Police Subordinate Serviced (the Subordinate Services mean the police officers of the rank of Inspector or blow) and prescribes the procedure to be followed before an order of dismissal, removal or reduc tion cap be passed. It was explained that the discharge (a) of a person appointed on probation, during the period of such probation, (b) of a person appointed, otherwise than under contract, to hold a temporary appointment, on the expiration of the period of that 'appointment, and (c) of a person, engaged under contract, in accordance with the terms of‑ his contract, does not amount to removal or dismissal within the meaning of this rule. It would follow that the discharge of a person during the period of probation or his dis charge on. the termination of the period for which he was, appointed or the discharge of a person on the completion, of the period for which he was appointed on a contract basis would not; be taken to be removal or dismissal from ‑ service for which an, enquiry is rendered necessary. The manner of the appointment of the appellants indicates' that they were appointed on a temporary basis, but with no fixed period and their case is not, therefore, covered by any of the classes referred to above. They all come under an anomalous class of persons appointed temporarily for an indefinite period. They could, therefore, be discharged from, service either after due notice or without notice after the holding of an enquiry for any neglect or remissness of duty on their part. Except in the case Hashmat Ali, against whom a formal enquiry was made o specific charges and who was also given a notice to show cause in accordance with the provisions of subsection (3) of section 240 of the Government of India Act, it is common ground that the services of the remaining six appellants were dispensed with with out any enquiry whatsoever having been made or without giving. them an opportunity to offer as explanation. Rule 1270 mentions the "Departmental Punishments" that can be awarded to officers of and below the rank of Inspector and cause (j) mentions "removal from service (not a bar to the employment in Government service in another department)" as one of them. This punishment has been awarded to the seven appellants and is under the rules treated as a "major punish ment". Rule 1293 says that an officer against whom an order of punishment hag been passed may prefer an appeal, but no such appeal is permissible in the case of "dismissal or removal of a person bolding a temporary appointment". This would evidently refer to the discharge of persons described in rule 33 above. It would also incidentally show that the Tales framed under the Police Act apply equally to both the, permanent and the temporary employees. Section 30 of the Act requires that "when any officer passes an order for fining, suspending, reducing or dismissing a Police officer, he shall record such order Or Cause the same to‑ be recorded, together with the reasons therefor Ono a note of the enquiry made in writing, under his signature in the language of the dis trict or is English". Section 31A prescribes the "Conditions of service" and provides that all matters relating to the recruit ment, pay, allowances and other conditions of service of police officers of and below the grade of Inspector shall be regulated by the Sind Civil Services Rules for the time being in force. Rule 1278 defines the procedure to be followed generally for the holding of departmental enquiries into the misconduct of police officers and drawing `up of proceedings under section 30 of the Bombay District Police Act, .1899. The enquiries are divided into two classes : (1) cases to be tried summarily ; and (2) on indictment. The former are to be. tried in the orderly roam and the latter by regular enquiry. Even in the case of summary enquiry in the orderly room, the evidence has to be recorded in the orderly room book and the opinion expressed thereon. It is further recited that where an appeal lies, regular proceedings should be drawn up in accordance with the rules. The rules are so devised that all reasonable facilities for defence are given, including the cross‑examination of the wit, nesses and the production of the evidence in defence. ,By way of guidance, a note is added to the effect that : "These orders embody the general principles which should be followed, but do not apply to petty cases of disobedience, insubordination and the like, . . . . . , provided that the officer inflicting the punish ment in such gases takes care to see that the person concerned knows with what he is charged and .has bad an opportunity of explaining or denying the charge". . Rule 1284 details the procedure to be allowed with such adaptations I as the circumstances of the case may render them necessary in "Inquiries with a view to Departmental Punishment as stated in rule 1270" "removal from service" is one of the "Departmental Punishments". After emphasising the affording of 811 reasonable opportunities for defence and of cross‑examining the evidence in support of the charge, sub rule (12) Inserted by Item Nos. 254 of 24th December 1912 and 272 of, ‑7th ‑ August 1945, reads of follows:

"In accordance with section 240 (3) of the Government of India Act 1935, no Government servant can be dismissed, re moved, discharged or reduced in rank until` he has been given a reasonable opportunity of showing cause against the, action pro posed to be token in regard to him. It is, therefore, necessary that after the enquiry against s Government‑ servant has been completed and after the punishing authority has arrived at provisional conclusions in regard to the penalty to be imposed the defaulter should, if the penalty pro posed is dismissal, removal or reduction be supplied with 11 copy of the report of the enquiring authority and be called upon to show cause within a reasonable time, not ordinarily exceeding one month, against the particular penalty proposed to be inflicted. Any representation submitted by the defaulter in this behalf should be duly taken into consideration, before final orders are passed": It may, be noted that this protection, is afforded to a Govern ment servant who is to be dismissed, removed or discharged or reduced in 'rank: Consequently, the appellants, who were dis charged from service for "unsatisfactory work", were also entitled to the protection of section 240 (3) of the Government of India Act, 1935, The Division Bench of the Chief Court of Sind (now High Court of West Pakistan, Karachi Bench, Karachi) hearing the appeal against the original judgment of Lari, J., (P L D 1955 Sind 285) took the view that sub‑rule (12) of Rule 1284 "cannot be availed of outside the procedure laid down in Rule 1284 or in cases in which by reason of the provisions of sub‑rule (3) of Rule 1278 read with clause (B) of sub rule (2) of Rule 1293, the procedure prescribed in Rule 1284 is; not to be followed". This is meant to say that since no appeal lies from the order of dismissal or removal of a person holding a temporary appointment under sub‑rule (2) of Rule 1293, it was not necessary to follow the procedure prescribed for cases subject to appeal. The "Temporary appointments" referred to in Rule 1293 and in which the appeal is prohibited, as stated above, could only be taken to refer to the discharge of any of the persons of the kind mentioned in the explanation to Rule 33 and it has been shown above that the appellants do not fall under any of the three classes mentioned in the explanation. It was further observed that the procedure of an enquiry with a view to summary action in the orderly room could not be held to apply to the case of "removal" or "dismissal", which was a "major punishment" within the meaning of Rule 1270. This construction will lead to a very curious result ; a person threatened with a minor punishment like caution or reprimand, can insist upon some sort of enquiry, while one liable to dismissal or removal from service cannot ask for any. To reconcile the two Rules and to give it a reasonable interpretation, the removal in clause (j) of Rule 1270 and the barring of the appeal in sub‑rule (2) of Rule 1293 in the case of "Removal of a person holding a temporary appointment" refer to a, Government servant holding a temporary appointment liable to be terminated on the expiration of the fixed period or on the comple tion of the contract, as contained in Rule

33. The case of the other persons not falling in this category must be decided in accordance with the general procedure indicated in Rule 1284. It was contended for the respondent, the Islamic Republic of Pakistan, that "dispensing with service" was not "dismissal" within the meaning of section 240 of the Government of India Act, 1935 ; that the protection granted by the section was taken away by section 243 ; and that the breach or even the violation of the service rules did not furnish a cause for action . in a Court of law and in the case of any wrong committed the only remedy was to move the Executive Government. These contentions may now be examined. The relevant portions of section 240 of the Government of India Act, 1935, are as follows :‑ "(1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in Pakistan or holds any civil post under the Crown in Pakistan, holds office during His (now Her) Majesty's pleasure. (2) No such person as aforesaid shall be dismissed from the service of His (now Her) Majesty by any authority subordinate to that by which he was appointed. (3) No person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." The expression "dismissal" has not been defined in the Act Vat within the meaning of section 277 it includes "removal from His Majesty's service". In every case, the substance of the matter is to be looked into to discover if this is or is not a case of removal from service". Ordinarily, it would imply "termination of service" before due time, if any, on account of some defect ' attaching to the Government servant or in the performance or the discharge of .his duties and the discharge for "unsatisfactory work" would be covered by the expression "removal" Section 243 reads as below :‑-- "Notwithstanding anything in the foregoing provisions of this chapter, the conditions of service of the subordinate ranks of the various police forces in Pakistan shall be such as may be determined by or under the Acts relating to those forces respectively."‑ The opening words "Notwithstanding anything in the fore going provisions of this chapter" are very significant. They mean that the constitutional guarantees contained In the foregoing sections, viz., sections 240, 241 and 242, can be destroyed or diminished in the case of the police forces by making rules under Police Acts contrary to the statutory provisions contained in the above sections. If no such rules exist, the, statutory guarantee must have their full force and play. The question then arises Are there any such rules in derogation of, say section 240, sub section (2) and subsection (3) which maintain that a civil servant shall not be dismissed by an authority subordinate to that by which he was appointed, or that no dismissal can be made with out affording a reasonable opportunity against the proposed action?' The answer mast be in the negative. On the other hand, in sub‑rule (12) of Rule 1284 reproduced above, particular attention is invited to the observance of the requirements of section 240 (3) of the Government of India Act, 1935, to impress upon the officials holding departmental enquiries, that the require ments of the statutory provisions of the Government of India Act should always kept in view and should not be departed from. It was then argued that the incorporation of the statutory law contained in section 240 (3) into the service rules has reduced the statutory provision to the rank of a rule and its breach would not be actionable. It is difficult to, accept this argument seriously. Under section 243, it was open ; to the Government to frame different rules under the Police Acts, but it did not mean that where no such rules were frame, the fundamental provision of section 240 (3) could be rendered ineffective by simply emphasing in the service rules the necessity of scrupulously following and acting upon it. In North West Frontier Province v. Suraj Narain Anand (AIR 1948 PC 112=PLD 1949 PC 1) the respondent, who was appointed by the Inspector General of Police was under an amended rule dismissed by the Deputy Inspector‑General of Police and the question for decision was whether any rule under the Police Act had been made under section 243 in derogation of the constitutional provision in section 240 (3). In their judgment of 18th of March 1948, their Lordship's of the Privy Council decided the case in favour of the North‑West Frontier Province on the assumption that the rule authorising the Deputy Inspector‑General of Police to dismiss a Sub‑Inspector had come into force before the order of dismissal was passed on 25th of April 1938. After the delivery of this judgment, the matter was again brought to the notice of their Lordships on the ground that it had been ascertained and was established that the amended Police Rules were published on 29th of April 1938, i.e., four days after the dismissal of the respon dent. On this new material, the previous decision was reversed and the appeal of the Frontier Province was dismissed. It would be clear from the above that the Police Rules were given effect to in supersession of section 240 (2), because they had been framed under the Police Act and saved by section 243, which made a constitutional provision, for the framing of such rules. This case cannot however, be considered as an authority for the proposition that even where a rule is not inconsistent with the constitutional provision, but is, on the contrary, in consonance with it, a rule should be considered to have taken the place of the constitutional guarantee and to have thus become a subject‑matter of section 243 which it could not be, as mentioned above, with reference to the opening words of the section. The exact purport of subsection (3) of section 240 was explained by the Judicial Committee of the Privy Council in The High Commissioner for India and another v. I. M. Lall (AIR 1948 P C 121=P L D 1948 P C 150) in the following words :‑-- "In their opinion, subsection (3) of section 240 was not intended to be, and was not, a reproduction of Rule 55 which was left unaffected as an administrative rule. ` Rule 55 is concerned that the civil servant shall be informed 'of the grounds on' which it is proposed to take action, and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing this is in marked contrast to the statutory provision of a `reasonable opportunity of showing cause against the action proposed to be taken in regard to him'. In the opinion of their Lordships, no action is proposed within the meaning of the subsection until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Prior to that stage, the charges are unproved and the suggested punishments are merely hypo thetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which subsection (3) makes provision." Where this constitutional provision was not followed and observed, it was held that the civil servant had a cause for action in a Court of law. In support of the argument that the breach or violation of rules would not be actionable reliance was placed upon R. Venkata Rao v. Secretary of state (64 I A 55). The decision of this case was given under the rules framed under section 96‑B of the Government, of India Act, 1919. It was observed that "In these individual cases (referring to Rangachari s case (64 I A 40) and the present case) mistakes of a serious kind have been made and wrongs have been done which call for redress. But while thus holding on the clear facts of this case, as they now appear from the evidence, as they similarly held in Rangachari's case, their Lordships are unable as a matter of law to hold that redress is obtainable from the Courts by action. To give redress is the responsibility, and their Lordships can only trust will be the pleasure of the Executive Government. 1Tbeir Lordships in these circum stances and taking this view of the effect of section 96‑B of the statute do not deem it necessary to discuss at length certain other grounds assigned for their conclusions by the Judges in the Courts below." The phraseology of section 240 (3) of the Government of India Act, 1935, is substantially different from that of section 96‑B of the Government of India act, 1919 considered in Venkata Rao's case. In the High Commissioner for India v. I. M. Lall, (AIR1948PC 121:PLD1948PC150.) at page 126, their Lordships of Privy Council had the occa sion to comment as follows :‑ "Contrasting the provisions, of section 96‑B of 1919 with the provisions of section 240 of 1935, their Lordships have no difficulty in holding‑in agreement with both the High Court and the Federal court‑that the provision as to a reasonable opportunity off showing cause against the action proposed is now put on the same footing as the provision now in subsection (2) of section 240, which was the subject of decision in 64 I. A. 40 end that it is no longer resting on rules alterable from time to time, but is mandatory, and necessarily qualifies the right of the Crown recognised in subsection (1) of section 240 of 1935. The provisions of section 96‑B (1), now reproduced as subsection (2) of section 240 of 1935, and of subsections, (2) and (3) of section 240 are prohibitory in form, which is inconsistent with their being merely permissive. While the affording of the opportunity rested on the rules under section 96‑ B of the Government of India Act, 1919, this provision‑ is now made a party the statute under, section 240 of the Government of India ,Act, 1935. A breach of the rules may not form the basis of acting a Court of law but one of statute will certainly entitle the Government servant to obtain from the Court a declaration that his dismissal or removal in contravention of the mandatory provision of the statute was inoperative, and void. On the above conclusions, I would grant the plaintiffs, except Hashmat Ali, a declaration to the effect that the order of the 30th December 1952, dispensing with their services is illegal, void and inoperative. I would dismiss the appeal of Hashmat Ali with costs. I would allow the other plaintiff's their costs throughout. j AMIR‑UD‑DIN AHMAD J.‑

I agree with Cornelius, J. in the orders that he proposes to pass in these appeals, and with the m reasons by which the orders are supported in the judgment. I should, however, like to add an observation that the appellants could normally aspect to be continued in service at least till the 28th February 1953, though I do not consider it necessary to be incorporated in the decrees for declaration. In accordance with the view of a majority‑ (a) the appeal of Hashmat Ali. is dismissed with costs ; and (b) the appeals of Nur‑ul-IIasan, Amanullah Khan Sherwani, Habib Ahmad, Qadir Ahmad Siddiqui, . Kadar Basha Aslami, and Akram Abbas are allowed with costs throughout and they are granted a declaration to the effect that the order of the Inspector‑General of Police dated the 30th December 1952, dispensing with their services is illegal, void and inoperative. A.H. Order accordingly.