P L D 1956 (W (PLP)

and any such agreement may contain such incidental and consequential provisions as may appear necessary or desirable for giving effect to the purposes of the agreement and shall, in the case of an agreement that there shall be one Commission for a group of provinces, specify by what Governor or Governors the functions which are under this Part of this Act to be discharged by the Governor of a Province are to be discharged. (3) The Public Service Commission for the Federation if requested so to do by the Governor of a Province may, with the approval of the Governor‑General, agree to serve all or any of the needs of the Province. (4) References in this Act to the Federal Public Service Commission or a Provincial Public Service Commission shall, unless the context otherwise requires, be construed as references to the Commission serving the needs of the Federation or, as the case may be, the Province as respects the particular matter in question," and section 265 ran as under :‑ "265.‑(1) The Chairman and other members of a Public Service Commission shall be appointed, in the case of the Federal Commission, by the Governor‑General and in the case of a Provincial Commission, by the Governor of the Province Provided that at least one‑half of the members of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for at least ten years under the Crown, (2) In the case of the Federal Commission, the Governor General and, in the case of a Provincial Commission, the Governor of the Province may by regulations‑ (a) determine the number of members of the Commission, their tenure of office and their conditions of service ; and (b) make provision with respect to the numbers of staff' of the commission and their conditions of service. (3) On ceasing to hold office‑ (a) the chairman of the Federal Commission shall be ineligible for further employment under the Crown in Pakistan. (b) the chairman of a Provincial Commission shall be eligible for appointment as the chairman or a member of the Federal Commission, or as the chairman of another Provincial Commission, but not for any other employment under the Crown in Pakistan. (c) no other member of the Federal or of any Pro vincial Commission shall be eligible for any other appoint ment under the Crown in Pakistan without the approval, in the case of an appointment in connection with the affairs of a Province, of the Governor of the Province and, in the case of any other appointment, of the Governor‑General." All these sections occurred in Part X of the Government of India Act, 1935, but while section 240 occurred in Chapter II of that Part, the heading of which Chapter was "Civil Services‑"General Provisions" sections 264 and 265 occurred in Chapter III, the heading of which was "Public Service Commissions". Acting under subsection (2) of section 264 of the Government of India Act, 1935, the Provinces of the Punjab and N.W. F. P., entered into an agreement on the 29th of April 1937 that they shall have a joint Public Service Commis sion. The agreement between the two Provinces was renewed till the 30th day of April 1940, and it appears that there were subsequent renewals of this agreement between the two Governments till because of the merger of the two Provinces in the Province of West Pakistan the two Provinces ceased to exist. In the original agreement which was entered into on the 29th of April 1937, it was agreed between the two Provinces by clause (3) that the Commission was to consist of six members of whom four shall be appointed by the Governor of the Punjab and two by the Governor of the North‑West Frontier Province, but the Chairman was to be appointed by the Governor of the Punjab, Clause 4 of the original agree ment between the two Provinces read as follows: "(4) The Governor who shall discharge the functions described in section 265 of the Government of India Act, 1935, shall in respect of any member be the Governor who under clause 3 has appointed such member, and in respect of the staff of the Commission shall be the Governor of the Punjab." Exercising the powers given to him by section 265 of the Government of India Act, 1935 and by clause (4) of the above mentioned agreement, the Governor of the Punjab on the 1st of May 1937, issued the regulations known as "the Punjab and North West Frontier Province Joint Public Service Commission (Conditions of Service) Regulations". Clauses 2 to 5 of these Regulations were, on the date of the appointment of the respondent as Chairman, in the following terms :‑ "

2. In these regulations, unless there is something repugnant in the subject or context, (a) the Commission' means the Punjab and North‑West Frontier Province Joint Public Service Commission, and (b) 'Member' means a member of the Commission appointed by the Governor of the Punjab and includes the Chairman thereof ; . (c) Governor' means the Governor of the Punjab.

3. There shall be two members of the Commission, including the Chairman, appointed by the Governor of the Punjab.

4. The normal period of tenure of the post of member shall be five years: Provided that‑ (a) when making the appointment, the Governor may for special reasons fix a shorter period of tenure ; (b) for special reasons the Governor may extend the period of tenure in a particular case year by year up to a maximum period of five years ; and (c) the Governor may at any time terminate the appoint ment of any member if satisfied that member is for any reason unable or unfit to continue to perform the duties of his office : Provided further that a Member may by resignation under his hand addressed to the Governor resign his office.

5. Notwithstanding anything in regulation 4, a Member shall ordinarily vacate his office on attaining the age of 65 years, provided the Governor may by special order, subject to the provisions of regulation 4, grant a Member an extension or extensions of service after he has attained the age of 65 years." In support of his contention that no suit could be institut ed by the respondent even if his term of appointment had been reduced in contravention of the Rules the learned counsel for the appellant relied on the decision of their Lordships of the Privy Council in Venkata Rao v. Secretary of State (A 1 R 1937 P C 31.). Their Lordships held in that case that a public servant, who had been dismissed from the service of His Majesty, could not seek redress from a Court of Law if the rules framed by Government with regard to the disciplinary action to be taken against public servants had not been complied with. The provision of law which fell to be inter preted by their Lordships was section 96B of the Government of India Act, 1919, the relevant part of which was in the following terms :‑ "Subject to the provisions of this Act and of rules made thereunder, every person in the Civil Service of the Crown in India holds office during His Majesty's pleasure . . . . ." Interpreting the section, their Lordships held that the service of the Crown being at pleasure under the Statute the mere fact that rules regarding inquiry had not been followed could not give a person dismissed from such service the right to bring a suit and the remedy of such a servant lay merely by an appeal to the executive authorities. It is clear from section 265 (2) of the Government of India Act 1935 that the tenure and conditions of service of Members including the chairman of a Public Service Commission were to be such as may be fixed by the Regulations which the Governor had to make. Clause 4 of the relevant Regulations reproduced above fixed the ordinary tenure of these servants of the Crown at five years subject to the power of the Governor to terminate the 'appointment if he were satisfied that the Member or Chairman was for any reason unable or unfit to continue to perform the duties of his office. The tenure of office of Members of Public Service Commission and Chairman of that Commission being fixed, it cannot be said that they like the vast majority of Government servants, held office during the pleasure of His Majesty. In the case relied upon by Mr. Mahmood, their Lordships made it clear that, as service of the Crown of which the appellant before them was a Member was at the pleasure of His Majesty Shah; according to Statute, non‑compliance with the rules could not form the basis of a suit in a Court of law. Their Lord ships did not, and I am certain did not intend to, lay down that if the tenure of a Government servant is not laid down in the Statute but in rules made because of a provision of the statute, the Government servant could not seek redress from a Court of law if his services were terminated in utter dis regard of the tenure and conditions of his service. It will not be out of place to mention that in High Commissioner for India and Pakistan v.

1. M. ball (A I R 1948 P C 225=P L D 1.948 P C 150) their Lordships of the Privy Council held that if an opportunity to show cause is to be given to a Government servant under the Statute, non affording of such opportunity gives the right to the servant to get redress from Courts in spite of the fact that service was at pleasure of His Majesty under the statute. If the law were that a Government servant could not bring a suit against his employer with regard to the termination of his service whatever be the circumstances attending such termination, the contention on behalf of the appellant that the suit could not be entertained by Courts would have had force, but an like other employers the Government can be sued in a Court if it terminates the services of its employees in a manner not allowed bylaw, I do not find any force in the contention that the respondent had chosen a wrong forum for the redress of his grievance against his employer. But whether or not the respondent was entitled to the relief which he prayed for, or any other relief, would depend on whether or not he has been able to establish that order terminating his services before the period for which he had been appointed was illegal. It was next contended by the learned counsel for the appellant that, as because of the rules governing the appoint ment of Members and the Chairman of the Public Service Commission contained in the Punjab and North‑West Frontier Province Joint Public Service Commission (Conditions of Service) Regulations, the respondent could not have been appointed the Chairman of the Commission for more than one year at a time, the order passed on the 4th of November 1952 and repeated on the 22nd of November 1952 appointing him as a Chairman for three years was ab initio illegal and void, and, therefore, when the Governor of the Punjab on the 24th of September 1953 corrected the mistake which had crept in at the time of the appointment of the respondent as a Chairman, no illegality was committed. Whether or not the term of the appointment of the respondent as Chairman could be reduced after it had been fixed on the ground that it had initially been fixed for a longer period than the rules permitted is a question with which I will deal a little later, and will at this stage deal with the contention of the learned counsel for the appellant that clause 4 of the Regulations which has been reproduced in an earlier part of this order, made it clear that no one could ordinarily remain a Member of the Commission for a period of more than five years be his Membership an ordinary Membership or Chairmanship. He made reference to paragraph (b) of clause 2 of the Regula tions which has been reproduced above and contended that when that clause is read ‑with clause 4 of the Regulations, the irresistible conclusion has to be that, after a person has remained a Member whether in the capacity of an ordinary Member or a Chairman or both for five years, his tenure of office automatically terminates, unless an order is passed extending his tenure which order could be passed only from year to year under sub‑clause (b) of clause 4 of the Regula tions, and, as the respondent had served as a Member of the Commission for over five years from the 10th of November 1947 to the 22nd of November 1952, he could be appointed as Chairman only for one year at a time and the order appoint ing him a Chairman for three years contravened the rules and was, therefore, illegal. When one carefully considers the clauses of the Regula tions relied upon by the learned counsel for the appellant, it becomes clear that his contention is untenable. The opening part of clause 4 when applied to Member would read as follows:‑‑ "The normal period of tenure of the post of Member shall be five‑years", and when applied to a Chairman will be in the following terms :‑ "The normal period of the tenure of the post of the Chair man shall be five years". Read in this manner, which to my mind is the only manner ire v which it should be read, clause 4 of the Regulations would mean that when a person was appointed a Chairman of the Punjab and N. W. F. P. Joint Public Service Commission, his ordinary term of office was five years and the period for which he hard been an ordinary Member was not to be taken into account. The above conclusion can also be arrived at by the consi deration of some relevant matters. The Regulations, clause 4 of which was relied upon by the learned counsel for the appellant, were, as is clear from clause 3, applicable only to Members appointed by the Governor of the Punjab because under the agreement entered into between the Punjab and N.‑W. F. Province, the Governor of the Punjab was to make Regulations with regard to the Members including the Chairman whom he alone could appoint while the Regulations governing the tenure and conditions of service of the Members appointed by the Governor of the North West Frontier Province were to be made by the Governor of that Province as mentioned in clause 4 of the agreement, entered into between the Punjab and N: W. F. Province before the creation of the Punjab and N.W. F. P. Joint Public Service Commission. Clause 4 of the Regulations made by the Governor of the N: W. F. Province on the same day that the Governor the office of a Member appointed fixed the ordinary tenure of the office of a member appointed by that Governor at five year and contained in a proviso the conditions which are contained the Regulations framed by the Governor of the Punjab which has been reproduced above. If the contention of the learned counsel for the appellant with regard to the tenure laid down by clause 4 of the Regulations made by the Governor of the Punjab were accepted, the result would be that though a Member of the Commission, who had been appointed by the Governor of the North‑West Frontier Province, could, when appointed a Chairman by the Governor of the Punjab, who alone could make the appointment of a Chairman, the appoint ment was ordinarily to be for five years, but the cumulative tenure of office as Member and Chairman, of a person, who was promoted to be the Chairman of the Commission if he was a Member of the Commission on appointment by the Governor of the Punjab, could not exceed five years. This is a result, which could never have been intended. In support of his contention that the cumulative period for which a person could remain a Member and a Chairman of the Public Service Commission could not exceed five years, the learned counsel for the appellant sought to seek support from section 186 of the recently passed Constitution Act of Islamic Republic of Pakistan. That section provides that the term of the office of the Chairman and other Members of a Provincial Public Service Commission shall be five years and a 'proviso to subsection (5) lays down that a person, who is a Member of a Public Service Commission, may be appointed as Chairman of that Commission for the un-expired term of his office. I confess I do not follow the relevancy of section 186 of the Constitution Act for the purposes of interpreting a rule, which was framed seventeen years earlier by a Governor of a Province acting under subsection (2) of section 265 of U the Government of India Act. The mere fact that the cumu lative period for which a person can hold the office of a Member or Chairman of the Public Service Commission is five years under the new Constitution, does not mean that the tenure of public servants of this class had been the same even before the Constitution Act was passed. If this argument of the learned counsel required any serious consideration one could have, proved from the other provisions of the Constitution Act itself that what was stated in section 186 with regard to the term of office of a Member and Chairman of a Public Service Commission had absolutely no reference to their tenure before the Act was passed. After considering the matter in all premissible ways, I have arrived at the conclusion that the ordinary tenure of a person appointed a Chairman of the Punjab and N. W. F. P. joint Public Service Commission, was, under clause 4 of the Regulations made by the Governor of the Punjab, to be five years, and by reason of part (a) of the proviso to that clause the appointment could be for a lesser period as it was in the case under consideration. I am further of the view that even if the learned counsel for the appellant had succeeded in his contention that under clause 4 of the relevant Regulations made under section 265 (2) of the Government of India Act, a person could not hold office of a Member including that of a Chairman for more than five years and if a person had held that office for that period his term of office could be extended by one year at a time, the suit of the respondent could not have been defeated. The tenure of the Chairman had to be as fixed by the Regulations made by the Governor and the appointment had to be made by the Governor. If, therefore, the Governor made an appointment which was not strictly in accordance with the Regulations, " do not see why it should not be presumed that for the purpose of that appointment the Governor had deemed it fit to amend the Regulations. Section 265 (2) of the Government of India Act did not provide that Regulations were to be made in any particular manner, for example, by previous publication in a Gazette, and, therefore, the mere fact that the Governor had not proclaimed that he had amended the Regulations could not have prejudicially affected the case of the respondent. The learned judge of the trial Court has held that no question of estoppel arises, and it was for that reason that issue No. 4 was decided against the respondent, but he does not appear to have looked at the matter in the manner indicated above. If the Governor of the Punjab had in the Regulations fixed the tenure of office of a Member and a Chairman as eight years nobody could have said that the Regulation was illegal or void as it was within his powers to fix the tenure and I do not see why he should not be held to have fixed the tenure of the respondent as Member and Chairman at eight years. If an authority, other than the appointing authority, had to make the Regula tions, the appointment could not have been taken to be an automatic amendment of the Regulations, but in the present case the authority that made the appointment was the same that could make the Regulations and different considerations cannot but arise in such circumstances. When this aspect of the matter was put to the learned counsel for the appellant, he urged that if the matter were looked at from that point of view then it could be held that when the notification dated the 24th of September 1953 was issued with regard to the respon dent, the rules regarding the period of the tenure of office had been amended and the respondent could not urge that an illegality had been committed. This, however, is not the proper way of looking at the matter because by appointing the respondent for a period of three years, the Government entered into a contract with the respondent that he will be kept in service for that period and could not reduce that period subsequently unless some provision of law authorised it to do so. It was next urged by the learned counsel for the appel lant that even if the respondent was appointed as a Chairman for a period of three years, he could have been removed at an earlier date by the Governor who by clause 4 of the Regula tions had the power to remove the Members and the Chairman of the Public Service Commission. No doubt the Governor could have removed the respondent from the office of the Chairman, but, according to the conditions of service, he could have done so only if he were of the opinion that for any reason the respondent was unable or unfit to continue to perform duties of his office. The learned counsel for the appellant the that the Governor should be deemed to have held that the appellant was unfit or unable to discharge the duties of his office, but, as it was nobody's case that the removal of the respondent was for the reason of his unfitness or inability to perform the duties of his office, it cannot be presumed to be a removal for any of those reasons. As it was not a removal under clause 4 of the relevant Regulations, it appears to me that the respondent would be entitled to the declaration he seeks. My reason for this is that before the order of removal was passed, the respondent was not given an opportu nity to show cause against the action proposed to be taken against him. The learned counsel for the appellant contended that Chapter II of Part X of the Government of India Act had no application to Members and Chairman of a Public Service Commission, and, therefore, it was not incumbent on the Governor to afford to the respondent an opportunity to show cause against his removal. He amplified this argument by saying that Members including Chairman of Public Service Commis sions had an entirely separate chapter devoted to them and, therefore, were not intended to be deemed to be members of civil services or persons holding civil posts, but this argument is effectively met with by the fact that, though Judges of the Federal Court and the High Courts were dealt with in Part IX of the Government of India Act, 1935, it is clear that the British Parliament which passed that Act never intended that they were not to be treated as members of the civil services of or holding civil post under the Crown. This is clear from the fact that section 253 of the Act provided that the provisions of Chapter 11 of part X of the Act would have no application to the Judges of the Federal Court or any of the High Courts. It would have been unnecessary to provide in section 253 that Chapter II of part X did not apply to judges of the Federal Court and the High Courts if the mere fact that those Judges had been dealt with in a different chapter (and in fact in a different part of the Act) had been intended to indicate that they were not members of the civil services of the Crown. The learned counsel for the appellant went on to say that as the conditions of service of the Members of Public Service Commission could be different from those of persons who were members of the civil services or held civil posts under the Crown, the respondent could not be said to be a member of a civil service or to be holding civil post and, consequently, section 240 of the Government of India Act could have no application to him. I agree was learned counsel for the appellant that the member of any of the civil services of the crown, but I cannot see why he was not holding a civil post under the Crown in Pakistan. Section 240 of the Government of India Act. 1935 giant to apply to all those persons, who were members was m of any of the civil services of the Crown or, held civil posts under the Crown, as distinguished from these persons who served the Government in the Military Department unless they held civil post in that Department. The term civil post has not been defined in the Government of India Act 1935, though reading together sections 240 and 277 of that Act one can infer that the civil services mentioned in the former were those, which were mentioned in the Schedule mast, I appended to the Civil Services (Classification, Control and Appeal Rules, which were published in Part I of the Gazette of India of the 1st of June 1930, with the Home Department notification No. F. 9/3/30‑Est., dated the 19th of June 1930). The respondent held a civil post and the provisions of section 240 of the Government of India Act, 1935, would apply to him unless any of them could be shown to be inapplicable. The wording of subsection (1) of section 240 made it clear that if there was an express provision in the Act to that effect a person holding a civil post did not hold it at His Majesty's pleasure and, as the tenure of Members and Chairmen of Public Service Commissions was to be fixed by Regulations made by the Governor of a Province by virtue of powers conferred by section 265 of the Act, it is clear hat it was expressly provided by the Act that a ember or a Chairman of a Public Service Commission did not hold office during His Majesty's pleasure unless the appropriate authority chose to lay down that the service was to beat the pleasure of His Majesty. It follows, therefore, that subsection (1) of section 240 of the Government of India Act, 1935, would not ordinarily apply to Members and Chairmen of Public Service Commissions. But if subsection (1) of section 240 did not apply, it does not follow that subsections (2) and (3) also did not apply to them. Subsection (2) and subsection (3) begin with the words "no such person as aforesaid" which words, in my opinion, mean a person who is a member of the Civil Services of the Crown or holds' any civil post under the Crown and these subsections would apply to Members and Chairmen of Public Service Commissions, unless they were over‑ridden by some other valid provisions of law. Now as subsection (2) of section 265 of the Government of India Act, 1935 provided that Regulations made by a Governor were to determine the conditions of service of Members and Chairman of a Public Service Commis sion and subsections (2) and (3) of section 240 of the Act also dealt with conditions of service of Government Servants governed by that section, the Regulations would prevail where they were in conflict with the section. But if a matter dealt with in the section was riot dealt with in the Regulations the section will be applicable to that matter. The reason for which the services of the respondent were terminated does not fall within‑sub‑clause (c) of clause 4 of the Regulations wherein it is provided in what circumstances the services of a Member or Chairman could be terminated and as it is obvious that if not dismissed the respondent was at least removed from service and for the purposes of subsection (3) of section 240 of the Act, dismissal and removal from service stand on the same footing the subsection had application, assuming that it would not have applied if the order of removal from service were passed for the reasons given in the Regulations. But even if subsection (3) of section 240 of the Govern ment of India Act 1945 applied to dismissal or removal from service of Members and Chairman of a Public Service Commission, argued the learned counsel for the appellant, no opportunity to show cause against the order of removal was necessary in the present case, because the removal of the respondent did not imply any defect in him. The argument was that subsection (3) of section 240 was applicable to only those cases of dismissal or removal from service which left a stigma on the Government servant dismissed or removed. Put in another form the argument was that if the Government wanted to dismiss or remove from service a person whom it considered at fault, it had to afford him an opportunity of showing cause against the action proposed to be taken against him, but if it were said in the order of dismissal or removal of a Government servant from service that he was an honest and competent servant with no faults at all, but the Govern ment was pleased to dismiss him or remove him from service, no necessity of giving him any opportunity to show cause arose. To support his contention the learned counsel for the appellant relied on a number of authorities, such as Shayamlal v. State of Uttar Pradesh and another (A I R 1954 S C of India 369) Kewal Mal Singhi v. Heta Ram and others (A I R 1952 Rajasthan 17) and Chaudhary Muhammad Ismail v. The Punjab Province (P L D 1956 Lah. 129), the last one of which was a decision in a Letters Patent Appeal against a judgment given by me in Chaudhary Muhammad Ismail v. The Punjab Province (3). It is, however, clear that what was held in those decisions was that if a Government servant were removed from service not for any fault of his but because he could be removed even without any fault, for example, where a person could, after he had served for certain number of years be compulsorily retired, the removal was not hit by subsection (3) of section 240 of the Government of India Act 1935. The present was not a case of removal from service by virtue of any rules which allowed such removal and I have no hesitation in repelling the conten tion of the learned counsel for the appellant that because the Governor of the Punjab did not remove the respondent from his post as Chairman of the Punjab and N.W. F. P. Joint Public Service Commission on account of any fault, section 240 (3) of the Government of India Act, 1935, could not be invoked by the respondent. But even if the contention of the learned counsel for the appellant with regard to the Regulations made under section 265 (2) of the Government of India Act, 1935, being a complete code governing the conditions of service of Members and Chairman of Public Service Commis sions be accepted, the position will not alter to the prejudice of the respondent. The Regulations applicable to the respondent did not provide that the services of a Member appointed by him or the Chairman could be terminated by the Governor of the Punjab for any reason, other than that mentioned in sub‑clause (c) of clause (4) of the Regulations and as the order passed by the Governor against the respondent on the 24th of September 1953, was not an order allowed by the sub‑clause it was illegal and inoperative and could be declared to be so by a Court of Law. No other point was urged by the learned counsel for the appellant, and, as those raised by him have no force, I would dismiss the appeal with costs. C. M. SHARIF, J‑ I agree. A. H. Appeal dismissed.