P L D 1958 (W (PLP)

S. A. RAHMAN, C. J.‑This judgment will deal with Regular First Appeals No. 14 and 121, Regular Second Appeal No. 522 of 1956 and Regular First Appeal No. 37 of 1954, which have been referred to a Full Bench of five Judges. They all relate to cases of discharge from service of Railway servants, and one of the questions which arises in each case is as to the legality of a term in the service agreement or in the service rules, enabling the Railway to terminate the services of the person concerned, on giving a notice of the requisite period mentioned in the agreement or the rules. The reference to the Full Bench was necessitated by the fact that a Division Bench of this Court in Mrs. Issac's case (P L D 1954 Lah,800) had taken the view that such a provision would nullify section 240 (3) of the Government of India Act, 1935, and would, therefore, be ultra vires that Act (hereinafter referred to as the old Constitution Act). It was felt that the legal position as expounded in that authority might require recon sideration. 2. In Regular First Appeal No. 37 of 1954, the position has changed with the death of the respondent, Abdul Aziz. The Federation of Pakistan, which is the appellant in the case, has put in a petition praying that the illegal representatives of the deceased be brought on the record as parties. In the absence of those legal representatives, it will not be possible to dispose of this appeal. Consequently, this should be left over for decision by a Division Bench, after the Full Bench has dealt with the point of law common to these cases. 3. In Regular First Appeal No. 14 of 1956, the relevant facts are that Fayyaz Ahmad, respondent, was a confirmed Inspector of Works in the North Western Railway and he was discharged from service by order of the General Manager, dated the 3rd of October 1953, on payment of one month's salary in lieu of notice, with effect from the 31st of October 1953, in terms of para. 3 of the alleged service Agreement, Exh. D. I. On the 8th of October 1954, he instituted a suit to challenge the legality of his discharge from service. The main attack on the order of termination was grounded on the absence of an opportunity to show cause against the proposed action and reliance was placed in this connection on section 240 (3) of the old Constitution Act. It was pleaded, inter alia, that no service agreement had in fact been executed by the respondent and, in the alternative,, such agreement was illegal, ultra vices and unenforceable. The defence of the Railway was that it was 'a case of discharge in accordance with the terms of the agreement and all the‑ benefits of the service rendered by Fayyaz Ahmad prior to the termination of his service would accrue to him under the rules. It transpired that Exh. D. 1 is pot really an agreement of service in respect of the permanent post held by Fayyaz Ahmad. This relates only to his period of appointment as an apprentice. No agreement is available, if at all one was executed, pertaining to the period of his service subsequent to his confirmation. Exhibit D. 1 enured only for one year and obviously had no relevancy to the present case. The trial Judge, assuming that Exh. D. I was a service agreement executed between the parties, held on the authority of Mrs. Issac's case that such an agreement was void. It was moreover pointed out by the learned Judge that the agreement contained no pro vision under which the services of the plaintiff could be terminated on a month's notice. The plaintiff‑respondent was, therefore, granted a decree to the effect that the order of the General Manager discharging him from service was illegal, ultra wires and inoperative and the plaintiff continued to be in the service of the defendant Railway in spite of that order, with costs. 4. In Regular First Appeal No. 121 of 1956 the respondent, Mr. C. S. Khan, was originally appointed A. T. S., on the Bengal and North‑Western Railway Company, on the 8th of December 1921. In 1943, the Bengal and North‑Western Railway was taken over by the Government of India and the respondent became an employee of the Government, to serve on what was then designated as the `O' and `T' Railway. On the 4th of April 1946, the respondent executed a service agreement with the Governor‑General for India in Council, Exh. D. 1, which is printed at page 31 of the paper‑book. It is not now disputed that the agreement in question enures for the benefit of the relevant authorities in Pakistan, though in the Court of first instance, the contrary stand was taken on behalf of the respondent. In 1947, on the Partition of India, he opted for Pakistan and was' appointed a Divisional Superintendent oh the North‑Western Railway in the Multan Division. Before his services were terminated, he was serving as Chief Traffic Manager on the East Bengal Railway in East Pakistan, till May 1953, when he proceeded on seven months' leave which was due to expire on the 3rd of December 1953. On the 19th of August 1953, while he was at Lahore on leave, he received an order signed by the Director‑General of Railway, Exh. P. l inform ing him that his services were no longer required by the Governor‑General, with effect from the 1st of September 1953 and that he was given six months' pay in lieu of notice, in accordance with clause (7) of the service agreement. On the 10th of November 1954, he brought a suit to challenge his removal from service and succeeded in obtaining a decree from the Senior Civil Judge, Lahore, mainly on the ground that the relevant clause in the service agreement was illegal and ultra vires, in view of the decision in Mrs. Issac's case. 5. In Regular Second Appeal No. 522 of 1956, the res pondent, Ghulam Sarwar, was working as a Foreman, Grade 11, in the scale of Rs: 575‑25‑650, as a confirmed official, before lie was discharged from service by means of a letter dated the 24th of August 1953, purporting to be issued by the Superin tendent, Mechanical Workshop, North‑Western Railway, with effect from the afternoon of the 24th of August 1953 and he was given one month's pay in lieu of notice, in terms of his service agreement. It was held by the trial Court that the order of discharge really amounted to dismissal from service and was within the mischief of the rule formulated in Mrs. Issac's case. It was, in addition, held that the dismissal order was mala fide and wrongful in addition to being ultra vires because of the factor of personal enmity entertained by certain Railway officers against the respondent. He was, therefore, granted a declaratory decree to the effect that the order of dismissal was inoperative and ineffective against the plaintiff‑respondent who continued to be in the service of the Crown. Costs were also awarded in his favour. On appeal, the learned Senior Civil Judge upheld the finding of the trial Court, that the case fell within the rule laid down in P L D 1954 Lah. 800, but opined that the finding about mala fides was unnecessary and in any case he would not be inclined to agree that any such mala fides had been established. The appeal was, therefore, substantially rejected. 6. The decision in all these cases turns on the true con struction of subsection (3) of section 240 of the old Constitution Act. On behalf of the appellant in each case (the Federation of Pakistan), it is contended that the discharge of a Government Railway servant in terms of his service agreement or in pursuance of a term of his service embodied in the rules, would be outside the purview of that provision. This view is strenuously con tested on behalf of the respondents. It is common ground between the parties that the proviso to subsection (3) of section 240 is not applicable to any of these eases. In Regular First Appeal No. 14 of 1956 no service agreement exists but Exh. D. 1 shows that the respondent had been given a copy of the relevant ' rules and he being a non‑pensionable, non‑gazetted "permanent" employee, under rule 149 of the State Railway Establishment Code, Volume 1, his services could be terminated by a months notice on either side. In the cases of Mr.‑,C. S. Khan and Ghulam Sarwar, service agreements existed and provided for termination of notice by the specified notice. It would be useful to set out the whole of section 240 in extenso. It reads as follows :‑ "Tenure of office of persons employed in civil capacities in Pakistan.‑(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 Majesty's pleasure. (2) No such personas aforesaid having been appointed by the Secretary of State or the Secretary of State in Council continues after the establishment of the Federation to serve under the Crown in Pakistan, shall be dismissed from the service of His Majesty, by any authority subordinate to the Governor‑General or the Governor according as that person is serving in connection with the affairs of the Federation or a Province, and no other such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. (3) No such 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 Provided that this subsection shall not apply‑ (a) where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where an authority empowered to dismiss a person or reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reason ably practicable to give that person an opportunity of showing cause. (4) Notwithstanding that a person holding a civil post under the Crown in Pakistan holds office during His Majesty's pleasure, any contract under which a person, not being a member of a civil service of the Crown in Pakistan, is appointed under this Act to hold such a post may, if the Governor‑General, or, as the case may be, the Governor, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not con nected with any misconduct on his part, required to vacate that post." 7. Subsection (1) of section 240 incorporates the British constitutional theory of all Crown service being within the pleasure of the Crown. The current of authority in England previously did not countenance any clog on that pleasure, even by a contract entered into between a servant of the Crown and the Head of the Department concerned, acting on behalf of the Crown. Reference may be made in this connection to Shenton v. Smith (1895 A C‑229). Dunn v. Reg. ((1896) 1 Q B 116), Gould v. Stuart (1896 A C 575) in which the exception was made in favour of statute prescribing terms of service and mode of dismissal, Dunning v. The Secretary State for India in Council (37 T L R 138) and Rodwell v. Thomas and others ((1944) 1 A E L R 700). These are authorities for the proposition that an officer dismissed from Crown service has no right of action in the Civil Courts and that his only remedy would be confined to an appeal, in the words of the Judicial Committee of the Privy Council, "of an official or political kind." A modification appears to have been introduced in some of the more recent authorities to the effect that if the appointment is made on the term that he shall hold office during good behaviour or that he is only to be removed for cause, he would be entitled to bring an action against the Crown if he was removed without cause. To al certain extent, as observed above, even in Gould v. Stuart, the provisions of a statute prescribing terms of service and mode of dismissal, were held to qualify the pleasure of the Crown. In support of the modified rule may be cited Terrel v. Secretary of State for the Colonies and others ((1953) 2 A E R 490), C. B. Reilly v. The King (1934 A C 176) and Robertson v. The Minister of Pensions ((1949) 1 K B 227). In the last mentioned case it was held that if a contract of service provides otherwise, the implication of pleasure would be excluded. On the older view, there emerged the anomalous result that a contract of service was enforceable by the Crown but not against it. Under the old Constitution Act, however, the pleasure of the Crown is to be regulated by the other express provisions of that Act. The main qualifications with which we are concerned, are contained in subsection (3) of section 240 and the question at once arises whether the word "dismissal" used therein has the dictionary meaning attached to that term or is to be given a technical connotation. On this point, there has been difference of opinion amongst the various High Courts in the Indo‑Pakistan Sub‑continent. 8. By virtue of section 277 of the old Constitution Act, the word "dismissal" occurring in subsection (3) of section 240, must be held to include "removal from service". Section 277 specifically refers to "the classification rules" relating to services, enforced under section 96 (b) of the Government of India Act, 1915. The Civil Services (Classification, Control and Appeal) Rules have been re‑published in Pakistan and I have a 1956 Edition before me. These rules do not apply to railway services but they have a bearing on the correct construction of sub section (3) of section 240 of the old Constitution Act. Rule 49 of these rules details the various penalties that; may, for good and sufficient reasons, be imposed upon the members of the services governed by these rules. Among these penalties are "removal from civil service of the Crown", which does not disqualify from future employment and "dismissal from service" which, ordinarily, has that result. An explanation is appended to the rules, clarifying that "the discharge" of a person appointed on probation, during the period of probation, of a person, appointed otherwise than under contract, to hold a temporary appointment, on the expiration of the period of the appointment and of a person engaged under contract, in accordance with the terms of the contract, does not amount to "removal" or "dismissal" within the meaning of the rule. The position under the Railway Rules as embodied in the Railway Establishment Code is not materially different. That the framers of the old Constitution Act had these classification rules in mind at the time of its enactment, if clear on a perusal of section 277 of that Act. It may, therefore, be fairly presumed that the word "dismissal" was not being used by the draftsman of the Act subsection (3) of section 240, in the dictionary sense but only in the technical sense envisaged by the classification rules and by a specific provision; this. "dismissal" was to comprehend also "removal from service". In the dictionary sense "removal" would be practically synonymous with "dismissal" and "discharge". 9. It is now well settled that the provisions of subsection (3) of section 240 apply to temporary Government servants also and not merely to those in the permanent employ of the Govern merit.. In case of temporary service, discharge in terms of the relevant contract, has never been held to be "dismissal" or "removal", within the mischief of this subsection. This view is obviously based on the proposition that the dictionary sense of termination of service before the due date, is not to be attributed to the word "dismissal" in subsection (3) of 240. Noor‑ul‑Hassan v. The Federation of Pakistan (P L D 1956 S C (Pak.) 331); (per Muhammad Munir C. J.), Federation of Pakistan v. Shamsul Huda (P L D 1957 Dacca 148) and the decision of the Supreme Court in that case in Constitutional Civil Appeal 1‑D, given on the 21st of November 1956, Sirajul Lslam's case (P L D 1957 S C (Pak.) 77); Satish Chandra Anand v. Union of India (AIR 1953 S C 250) ; Jayanti Prasad v. State of Uttar Pradesh (A I R 1951 All. 793), Prem Bihari Lai v, State of Madhya Bharat (A I R 1954 Madhya Bharat 49); Sharda Prasad v. A. G. of Utter Pradesh (A I R 1955 All. 496); Neki Kishen v. Rup Chand (A I R 1952 Pb. 366) ; Secretary of State v. Ram Lal Kohli (A I R 1936 Lah. 663) and Siri Vastava v. Accountant‑General (A I R 1955 All. 496) are authorities which have favoured this line of approach. 10. The contrary view is represented by Ramesh Chandra v. State of West Bengal (A I R 1953'Cal. 188 11), Brojo Gopal Sarkar v. Commissioner of Police (A I R 1955 Cal. 556), Ishar Das Mehta v. Pepsu (A I R 1952 Pepsu 148) and Shambu Dayal v. Pepsu (A I R 1952 Pepsu 152). In the first two cases, it was held that "discharge" on ground of unsatisfactory work was included within the term "dismissal" or "removal" a proposition with which one need not disagree, for the mere use of the innocent word "discharge" would not turn what is really a dismissal by way of penalty, into a simple termination of service in accordance with a contract. In the two Pepsu cases, Teja Singh, J. was inclined to the view that Article 311 of the Indian Constitution (which corresponds to section 240 of the old Constitution Act) covered all kinds of cases of termination of service, irrespective of the fact whether such termination was due to misconduct "or otherwise". The learned Judge went to the length of saying that even the retrenchment of a post would attract the provisions of Article 311 of the Indian Constitution and that compulsory retirement after twenty‑five years' qualifying service under the relevant service rule, would amount to the infliction of a penalty and would, therefore, be within the mischief of that Article. If these decisions imply that all kinds of discharge from service, even in pursuance of a contract clause, would amount to dismissal or removal in the technical sense of the classification rules, I must respectfully record my dissent from that view. The opinion expressed by Raja Singh, J. that even compulsory retirement under the twenty five yeas' qualifying rule would be hit by Article 311 of the Indian Constitution is contrary to a decision of the Supreme Court of India itself, in Shyam Lai's case (A I R 1954 S C 369). With due deference, I also cannot accept the dictum' of Teja Singh, J. that even the retrenchment of a post and the consequent termination of the service of the incumbent, would amount to his dismissal. 11. Besides the case of‑Shyam Lai v. State of Uttar Pradesh, there is an authority of the old Lahore High Court reported as Muhammad Ismail v. The Punjab Province (P L D 1956 Lah, 129) in which it was definitely laid down that no legal right inheres in a Government servant to insist that he shall not be made to retire before he attains the age of fifty‑five and that the compulsory retirement of a Government servant, after putting in twenty‑five years' qualifying service, in accordance with a service rule, would be outside the purview of subsection (3) of section 240 of the old Constitution Act. I was a party to that decision. 12. It was argued on behalf of the respondents that sub section (3) of section 240 of the old Constitution Act was not confined to cases of termination of service or reduction in rank for misconduct or by way of penalty. It was contended that even an arbitrary or capricious removal or reduction in rank, would be covered by this subsection and in support, reliance was placed on Punjab Province v. Ch. Nazir , Husain (P L D 1956 Lah. 556), Kazi Hikmat Husain v. Pakistan (P L D 1958 Kar. 1) decided by a U. B. of the Karachi Bench on the 17th of October 1957 and my observations contained it the judgment in Civil Miscellaneous No. 574 of 1955, decided on the 3rd of January 1956. In the first of these cases, Chaudhri Nazir Husain was appointed on contract for three years as a Member of the Public Service Commission and it was held that the period of his contract could not be arbitrarily curtailed by a unilateral decision of the Government. In Kazi Hikmat Husain's case, the officer had been promoted to a higher post but he was later sought to be reverted to his old appointment for reasons unconnected with his personal conduct. This was found to be reduction in rank, within the meaning of the sub section. I am disposed to agree with the contention that a wholly arbitrary or capricious removal from service, without reference to any term in a contract, would in all probability, be hit by this subsection, but I find it difficult to accept the broad H proposition that a discharge in accordance with the term in a contract of service, would amount to such arbitrary removal or dismissal. 13. The question then arises what further protection was made available to permanent Government servants under section 240 of the old Constitution Act, as contrasted with the case of temporary Government servants. My brothers, Kaikaus and Akhlaque Husain, JJ., in deciding Mrs. Issac's case (P L D 1954 Lah. 800) apparently proceeded on the assumption that a tenure of service was guaranteed by this section to persons who were said to be in the permanent employ of the Government, despite the fact that they may have entered into a contract of service making provision for termination of their service by a notice for a specified period. This would be contrary to the dicta of the Judges in the cases of Muhammad Ismail and Shyam Lal men tioned above, and I find no support for this assumption either in the language of section 240 or of section 241 of the old Constitution Act. Section 241 no doubt visualises the framing of service rules for all classes of Government servants, by the appropriate authorities, except in the case of those employed temporarily on the term that their employment may be terminated on one month's notice or less. Some discretion is, however, given to the rule‑making authority to exclude matters not considered suitable for regulation by rules, from the latter's purview. No doubt, these rules are meant to guard against capricious and arbitrary action by superior authorities against Government servants and as the Privy Council said in Venkata Rao's case (AIR 1937 P C 31) the terms of section 96‑B of the old Government of India Act contain 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 rules. This is why a provision for appeal in the rules is made obligatory by section 241 of the old Constitution Act, in certain contingencies. Sub section (3) of that section, inter alia, provides that a right of appeal shall be conceded to the person covered by this subsection, to the appropriate authorities, from any order which‑ (i) punishes or formally censures him ; or (ii) alters or interprets to his disadvantage any rule by which his conditions of service are regulated ; or (iii) terminates his appointment otherwise than upon his reaching the age fixed for superannuation. It is, therefore, envisaged that there may be cases of termination otherwise than upon reaching the age of superannuation without involving the concept of punishment and such situations are to be regulated by rules. This provision probably furnishes the sanction behind the rules enabling the Government to retire com pulsorily an employee who has put in twenty‑five years' qualifying service. Clearly, such cases are distinguishable from cases of termi nation of service by removal or dismissal which are mentioned in clause (i). There does not seem to be any strong reason why a contract of service or a condition in the service, accepted by the appointee at the time of his first appointment, providing for termina tion of service in accordance with a notice prescribed in the contract or term of service, should be repugnant to the provisions of section 240 or section 241. Such a contract of service, under the general law of. master and servant, would be valid and unless it is forbidden, either expressly or by necessary intendment by the constitutional provisions, in the case of Government servants, it should not be assumed on the ground of a supposed policy that it would not be upheld in this case. 14. It is pertinent to note that the classification rules con template agreements even with so‑called permanent Government servants. Rule 46 enables a controlling authority to enter into a contract with a particular person to be appointed to a particular post making provisions different from the rules in respect of conditions of service, pay and allowances and to that extent the rules would stand superseded. If departmental construction has any value, it may be relevant to take note of the running com mentary on this rule given in the appendix to the official publication to the Rules .in 1951, at page 36, which reads as follows :‑ " Special provisions by agreement will mostly be required for members of `General Services' but it is not the intention to restrict the use of agreements to them. For example, the agreement entered into by members of the Indian Police Service, which contains numerous provisions not stated in statutory rules, e.g., provisions for a free passage on appointment, and for probation and discharge, would be covered by this Rule ; and until the statutory rules have been extended very con siderably beyond their present scope, such agreements wilt be required even for members of ordinary permanent services". If this was‑ the back‑ground of the rules which was before the British Parliament when enacting the old Constitution Act, it is surprising that nothing should have been said in that Act explicitly, to make any contracts with the so‑called permanent servants illegal, if the intention was to invalidate them hence forward. Rule 56 gives the right of appeal to a person included in one of the clauses (1) to (5) specified in rule 14, inter alia, from an order discharging him in accordance with the terms of his t contract, if he has been engaged on a contract for a fixed or for an indefinite period and has rendered under either form of contract, continuous service for a period exceeding five years, at the time when his services were terminated. Sub‑rule (3) of rule 58 says that every person appointed by the Secretary of State in Council shall be entitled to appeal to the Secretary of State in Council against an order of any subordinate authority terminating his employment or giving notice of such termination, otherwise than on his reaching the age of superannuation. By rules 59 and 60, guidance is furnished to the appellate authority as to how a particular appeal is to be dealt with. In the case of an appeal against an order imposing a penalty specified in rule 49, the appellate authority has to consider whether the facts on which the order was based have been established, whether the facts established afford sufficient ground for taking action and whether the penalty is excessive, adequate or inadequate, and after such consideration, to pass the appropriate order. In the case of an appeal against an order under rule 58, however, which includes an appeal against an order terminating appoint ment on giving notice before the age of superannuation is reached, the appellate authority is directed to pass such order as appears to it to be just and equitable, having regard to all the circumstances of the case. It seems to me that the provisions of these rules would ensure a safeguard to a Government servant against arbitrary use of a contract clause providing for termination of service by a notice by a subordinate authority and it cannot be reasonably argued that the mere inclusion of such a clause in a contract would introduce such an element of arbitrariness in respect of tenure of service as would attract the provisions of subsection (3) of section 240. It is significant that in the old Constitution Act, although a definite superannuation age is specified in respect of Federal Court and High Court Judges and some other categories of high officers, no such superannuation age is fixed with regard to other Government servants, whether permanent or otherwise, and the matter is left to be regulated by rules framed under section 241 or section 243. I am, therefore, unable to accede to the contention that the scheme of the old Constitution Act envisages a particular superannuation age for all permanent Government servants and that such an age cannot/E be cut down without attracting subsection (3) of section 240. 15. Kaikaus, J., who wrote the judgment in Mrs. Issac's case also referred to rule 1702 of the Railway Establishment Code, which specifies the various penalties that may, for good and sufficient reasons, be imposed upon railway servants. They include "removal" and "dismissal from service". In a note under the rule it is stated that the discharge (a) of a person appointed on probation, during the period of probation ; (b) of a person engaged under contract for a specific period, on the expiration of such period in accordance with the terms of his contract ; (c) of a person appointed in a temporary capacity otherwise than under a contract, in accordance with the general conditions of service applicable to temporary employment; (d) of a person for inefficiency due to failure to conform to the requisite standard of physical fitness ; (e) of a person on reduction of establishment ; or (f) of a person who is liable to discharge for failure to qualify in certain duties or subjects under the condition of his service ; does not amount to removal or dismissal within the meaning of this rule. My learned brother observed that clause (c) of note (1) excludes from the scope of removal, only the termination of service of temporary employees in accordance with the conditions of service applicable to them, but the termination of service of a "permanent employee" in accordance with the conditions of his contract, had not been specifically excluded. In Advance Chapter 5, which contains disciplinary rules with respect to non‑gazetted officers, there is a reproduction of rule 1702 but there is a subsidiary rule attached to it which contains the following explanation :‑ "All appointments, whether in permanent or temporary vacancies will be regarded as made on probation for twelve months or, if, as in the case of temporary vacancies generally, they are made for a shorter period, for such shorter period. The effect of ‑ these orders will be that the discharge of a person, before completion of twelve months' service (and therefore still on probation) will not amount to removal within the meaning of rule 2. Where, however, an employee has completed twelve months' service, and the probationary period is therefore over, the normal procedure prescribed in these rules shall be followed if it is desired to discharge him as a disciplinary measure. In any case, the discharge of a temporary employee (whatever the length of his service) at the end of the period of his temporary appointment or on the termination of the work for which he may have been employed is not regarded as disciplinary action". Kaikaus, J. thought that the discharge of a permanent employee after twelve months' service, in accordance with this Explanation, would be regarded as disciplinary action and would amount to removal. With due deference it does not seem to me that the inference necessarily follows. I do not regard the various categories of exceptions referred to above as exhaustive of the situation of non‑actionable discharge from service. In Rule 1708 again, no doubt, the word "removal" has been used in the context of termination of service in terms of an agreement in the proviso, but that is obviously a loose expression and not intended to imply that termination of service in terms of an agreement would amount to "removal" in the technical sense. 16. The attention of the Bench was also invited to Union of India v. Someswar Banerjee (A I R 1954 Cal, 399) and Fagir Chand v. Chakrawarti (A I R 1954 Cal. 566). In the first case, removal from service on the ground of inefficiency due to physical incapacity was held to be covered by subsection (3) of section 240 and consequently rule 1709 (b) of the Railway Establishment Code which permitted such termination of service on this ground was held to be ultra vires. In the second case, it was ruled that provision in a contract of a temporary employee that lie could be dismissed or removed from service without giving him an opportunity to be heard was repugnant to Article 311 of the Indian Constitution and could not be upheld. These two were really cases of dismissal and obviously were within the mischief of the constitutional provision relied upon. They do not lend support to the contention that there could not be a contract with a Government servant (who may normally have an expectation of retiring at the age of superan nuation), providing for an earlier termination of service on giving the requisite notice for a particular period. 17. Some cases have been decided in India relating to so‑called permanent Railway servants, in which a clause in the service contract providing for termination of service by notice of the specified period, has been upheld as valid and as not contrary to section 240 of the old Constitution Act or of Article 311 of the new Indian Constitution. Bhagwandas v. Senior Superintendent, Way and Works (A I R 1956 Pat. 23) ; Biswa Nath Singh v. D. T. S., N. E. Railway (A I R 1956 Pat. 221); Ajit Kumar v. C. O. S. E. 1. Railway (A I R 1953 Pat. 92); Sambandam v. G. M. S. I. Railway (A I R 1953 Mad. 54) ; Des Raj v. Dominion of India (A I R 1952 Pb. 205) and Gopal Krishna v. Union of India (A I R 1954 S C 632) may be referred to in this connection. These authorities are based on the view that the termination of service in such a situation rests wholly in contract and cannot be described as "dismissal" or "removal" within the meaning of the constitutional provision. In the recent case of P. L. Dhingra v. Union of India (A I R 1958 S C 36) the Supreme Court of India, after a review of the case law on the subject, has reaffirmed the proposition that if Government has by contract, express or implied, or under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules, is prima facie and per se, not a punishment and does not attract the provisions of Article 311 of the Indian Constitution. That was actually a case of reduction in rank and not of termination of service, but the learned Judges surveyed the position of Government servants as a whole and made the above observations which are, therefore, entitled to consideration as an exposition of the relevant law by the highest judicial authority in India. It has been pointed out in that case that in the absence of a special contract, the substantive appointment to a permanent post, gives the servant so appointed, a right to hold the post, until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his services cannot be terminated except by way of punishment, for misconduct, negligence, inefficiency or any other disqualification found against him, on proper inquiry, after due notice to him. With respect, I am disposed to agree with this statement of the law. 18. There is also a group of cases from India wherein it has been held that where the termination takes place in terms of a contract, Article 311 (2) of the India Constitution cannot be invoked, even though the reason which motivated the employment of the contractual power was misconduct of the Government servant or some like reason. Basu in his well‑known commentary on the Constitution of India at page 486 has cited in this con nection Mohan v. P. & E. P. States Union (A I R 1954 Papsu 143) ; Krishan Gopal v. State of Punjab (A I R 1952 Pb. 366) ; Prem Beharilal v. State of M. B. (AIR 1953 MB49) ; Bakshi v. Saksena (A I R 1954 All. 5) and Sharda Prasad v. A. G.. U. P. (A I R 1955 All. 496). Some observations made by the learned Chief Justice of Pakistan in Nur‑ul‑ Hasan's case (P L D 1956 S C (Pak.) 331) and the decisions of our Supreme Court in Shams‑ul‑Haq's case (Constitutional Civil Appeal No. I‑D of 1956, decided on the 21st of November 1956) and Abdul Karim v. W. Pakistan Province (P L 0 1956 S C (Pak.) 298) may, be invoked, in support of this view. 19. After a consideration of the relevant law and the authorities, I have reached the conclusion that there is nothing; illegal in having a special clause in a contract with a railway servant, providing for termination of his service in accordance with a notice prescribed therein for the relevant period, even in the case of those who may otherwise go on till the age of superannuation fixed by the service rules. There is no express provision in the old Constitution Act, which bars such an agreement and the back‑ground of the classification rules, in fact points to the possibility of such an agreement. The sanctity of a freely concluded agreement must be respected unless a con stitutional or statutory provision or a rule of public policy militates against that course. I am unable to spell out such public policy from the old Constitution Act. The position would be the same if instead of a contract, the terms of service contain such a clause and these terms are accepted , by the appointee on his first appointment. It may of course, in another sense, be bad policy for the Railway authorities to prescribe such service contracts as could deter the best available talent from entering Railway service. But if as a Commercial Department, the Railway feels that they can afford to do without first class brains, it is not for the Courts to dictate to them otherwise. I the case of temporary servants, section 241 does recognize that they may be discharged from service in accordance with the terms, of their agreement. There is no express reference to the types of Government servants in this context and I do not fee constrained to hold that such a contract cannot be entered into b employees other than those engaged temporarily. The preponde rance of authority appears to favour this view and I would, therefore, respectfully dissent from the decision of this Court in Mrs. Issac's case. It may be pointed out that the case went up on appeal to the Supreme Court but unfortunately the point under discussion was not decided by their 'Lordships, as it was held not to arise in that case. On the facts it was found that the termination of Mrs. Issac's service, irrespective of . whether she was a temporary or a permanent servant, was by way of disciplinary action and was vitiated by lack of the requisite inquiry and an opportunity to show cause against it. In the case of termination in accordance with a contract, it is clear that the Government servant concerned does not lose the benefits of the service which he has already rendered and no penalty or punishment is thus involved. This is a feature which distinguishes such a discharge from "dismissal" or "removal". 20. I would, therefore, allow Regular First Appeals No. 14 and 121 of 1956 and Regular Second Appeal No. 522 of 1956 on the ground that the discharge of the respondents in these cases being in terms of a contract or a term of service agreed upon at the inception of service was legal and not open to exception, and dismiss the respondents' suits, but in the circumstances would leave the parties to bear their own costs throughout. SHABIR AHMAD, J.‑I agree with my Lord the Chief Justice and have nothing to add. KAYANI, J.‑These four appeals arise from suits filed by four different railway servants in permanent employ, three of them being non‑gazetted officers and one a gazetted officer, against orders terminating their employment in accordance with the terms of their service, though they had not reached the age of superan nuation, which is normally fifty‑five years. In the Courts below, they successfully contended that the order of discharge was bad because they had not been afforded any opportunity of showing cause within the meaning of section 240 subsection (3) of the Government of India Act, 1935. The question before us is whether a simple order of discharge is covered by the term "dismissal" used in section 240. It is unnecessary to add that by the operation of‑ section 277, references to "dismissal from His Majesty's service" include references to "removal from His Majesty's service". 2. The ordinary civil servant is governed by the Civil Services (Classification, Control and Appeal) Rules, 1930, made by the Secretary of State for India under section 96‑B of the Government of India Act, 1915, but these rules exclude railway servants, who are controlled by a corresponding set of rules reproduced now in the State Railway Establishment Code, 1940, made under section 241 of the Government of India Act, 1935. Rule 1‑43 of these rules provides for a service agreement with the Governor‑General by railway servants holding non‑pensionable posts, and I should make it clear that, so far, railway service is generally non‑pensionable. The prescribed form of a service agreement provides for a month's notice if termination of service is desired by either party, but apart from any such agreement, rule 148 (3) itself states that service ~is liable to termination at a notice of six months in the case of gazetted officers and one month in the case of non‑gazetted officers. The next rule relevant to our purpose is rule 1702, which provides for penalties, while rule 1703 draws a distinction between dismissal and removal, the former disqualifying for future employment, the latter not necessarily operating as an "absolute disqualification". Then there is rule 2046, which states that the date of compulsory retirement is the date on which a person attains the age of fifty‑five. This provides sufficient introduction to the Railway Rules. 3. It will have been noticed that these rules present a discharge order as an ordinary feature of service. This presen tation, however, is misleading, because the railway service is as permanent as any other service and there being a regular service cadre, regular promotions and normal age of retirement, discharge is, in practice, a phenomenon of rare occurrence, and howsoever well‑bred we may be, we regard it with suspicion and we regard it as the next best alternative to premature death. The genesis of rule 148 may lie in the fact that railway services were formerly run by commercial undertakings, which naturally found it incon venient to take undesirable servants through the process of "reasonable opportunity", and, fond as our previous Governments were of tradition, they retained this vice even when the servants of the Commercial Companies became the servants of the State, forgetting that there is a patent paradox between discharge at pleasure and retirement at fifty‑five, that there is a latent paradox between discharge without inquiry for unsatisfactory conduct and dismissal for the same reason after a reasonable inquiry, and that a young man to whom all services were open when he completed his education would approach the Railway Headquarters only at the point of starvation if he knew that at the age of forty he could be sent away, without assignment of cause, to seek his fortune elsewhere. I am not thinking of cases of corruption, because in those cases there will be a charge‑sheet, an inquiry and an opportunity to pour out one's mind if the charge is dishonest. 4. I now go to the Civil Services (Classification, Control and Appeal) Rules because the argument for the State is largely based on those, rules, more expressly on the assumption that the draftsman of sections 240 and 241, Government of India Act, 1935, was closely following the language of those rules. They do not provide for any arbitrary discharge, though there is a "Special Provision" for agreements in rule 46, which may be profitably reproduced :‑ "R. 46. (1) When in the opinion of the controlling authority special provisions inconsistent with any of these rules or of any rules made thereunder are required in respect of conditions of service, pay and allowances, pension, discipline and conduct with reference to any particular post, or any of them, it shall be open to the controlling authority subject to the provisions of rule 10, but notwithstanding anything otherwise contained in those rules, to provide by agreement with the person appointed to such post for any of the matters in respect of which in the opinion of the controlling authority special provisions are required to be made, and to the extent to which such provisions are made in the agreement nothing in these rules or any rules made thereunder shall apply to any person so appointed in respect of any matter for which provision is made in the agreement. "(3) Any agreement of the nature referred .to in sub‑rule (1) or sub‑rule (2) may provide that the person with whom it is made shall not, save in circumstances stated in the agreement, be dismissed otherwise than on payment to him of compensation by the Controlling authority or the Secretary of State as the case may be It will be noticed, however, that these special provisions can be made only, "with reference to any particular post", and that, consequently, they cannot be made to apply to a service generally. A decision of the Government of India in 1935, reported under the text of Rule 9 (which provides that any rule made under the Classification, Control and Appeal Rules shall not operate to affect to the disadvantage of any person the conditions of service governing him unless such person gives his consent) explains that "rule 46 provides for (i) additional concessions to members of a service not incorporated in statutory rules", though "this purpose of the rule is not, apparent from the wording of the rule itself"; and (ii) "Regulation of conditions of service ab initio of holders of' special posts, or even of members of general services who discharge particular functions, and that it "cannot be applied to deprive members of services of concessions they enjoy by rule owing to their being on the cadre of a service. As deliberalisation is specially provided by rule 9, Rule 46 is clearly not intended to be another medium of deliberalisation". 5. If that be the scope .of rule 46, it cannot contemplate an agreement of discharge where the parties agree to the service being permanent, because it, will operate almost invariably to, the dis advantage of the person employed. 6. Sub‑rule (3) is substantially in the language of subsection (4) of section 240, Government of India Act, 1935, with some difference, which will receive attention in due course. The Running Commentary in Appendix A to the Rules explains that "sub‑rule (3) embodies the Secretary of State's decision on the question of granting compensation to officers employed on contract which was raised in paragraph 88 of the Lee Commission's Report * * * * * * ". This is another indication of the purpose of rule 46. And apart from rule 46, there is no provision for contracts or agreements of service in these rules. 7. With this introduction, I shall now reproduce rule 49, which is the mainstay of the argument for the State :‑ " R. 49. The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the classes (1) to (5) specified in rule 14, namely :‑ (i) Censure. (ii) With‑holding of increments or promotion, including stoppage at an efficiency bar. (iii) Reduction to a lower post or time‑scale, or to a lower stage in a time‑scale. (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. (v) Suspension. (vi) Removal from the civil service of the Crown, which does not disqualify from future employment. (vii) Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment. Explanation‑The discharge‑ (a) of a person appointed on probation, during the period of probation, (b) of a person appointed otherwise than under contract to hold a temporary appointment, on the expiration of the period of the appointment, (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." 8. Mr. Mahmud argued for the State that the word " reduction and dismissal " used in subsection (3) of section 240, Government of India Act, and removal in section 277 had been taken by the draftsman of the Act from rule 49 and that, consequently, he must have been alive to the fact that the Explanation to rule 49 was excluding " the discharge of a person engaged under contract, in accordance with the terms of his contract ", from the category of " dismissal and removal ", which were penalties. This suggested two inferences : firstly, the Act recognized discharge as a condition attending certain services or posts ; secondly, section 240, by not mentioning discharge, confined its operation to that form of dismissal and removal which was inflicted as a penalty. Subsection (4) of section 240, the argument proceeded, recognized service under contract. Attention was next drawn to the similarity between the language of section 241, subsection (3) (b) and of rule 58 which provides for appeal against an order (a) altering or interpreting to an officer's disadvantage his conditions of service, or (b) terminating his employment otherwise than upon his reaching the age of superannuation, by way of future proof that the Act was drawing upon the Classification Rules. It was also pointed out that rules 59, and‑ 60 provided a different treatment for an appeal against an order imposing a penalty and an appeal altering or interpreting to a person's disadvantage his conditions of service or terminating his employment otherwise. than on his reaching the age of superannuation. 9. I must say that this argument receives strong support from‑in fact it is based on‑the judgment of the Chief Justice of Pakistan in Noorul Hassan's case (P L D 1956 S C (Pak.) 331). Since, however, the Supreme Court has not so far laid down the law on this particular point, it is my purpose to submit my views uninfluenced by previous judgments in order that the position might be reconsidered. 10. I have no doubt that the draftsman of the Act had the Classification Rules before him when he was drafting Part X, which deals with " The Services of the Crown in Pakistan ". He gold not have accomplished his task without having some service rules before him. The fundamental point to be borne in mind, however, is that whereas the rules prescribe and regulate the conditions of service which for the most part bind a civil servant, the purpose of the constitutional provisions in section 240 and other sections is not to bind the servant, but to guarantee to him a security of tenure, and it is with that thought in mind that the words dismissal and removal should be approached. I should think that if the manner of removal endangers that security, call it by whatever name you will, it offends the Constitution. 11. The argument based on similarity of language between the Act and the Rules has other limitations too. The Act has sometimes gone beyond the Rules and sometimes fallen short of them. Thus, in I. M. Lall's case (75 I A 225 : P L D 1948 P C 150) the Privy Council drew a distinction between the opportunity to defend as given by rule 55 and the opportunity to show cause against dismissal as required by section 240 (3), Government of India Act, " In their opinion", says the judgment of their Lordships, " 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' ". 12. Another instance of departure from the rules is found in the provision relating to reduction. The Act confines itself to "reduction in rank", but rule 49 (iv) speaks of "reduction to a lower post or time‑scale or to a lower stage in a time‑scale", and it is obvious that a lower stage in a time‑scale is merely a reduction in pay but is not a reduction in rank. 13. As regards similarity between the language of section 241 (3) (b) and rule 58, it is clear that the clauses (a) and (b) of subsection (3) aimed at guaranteeing the existing conditions of service to persons who were in service on the date of the Federation, and the same language was, therefore, employed; but the Act went beyond the Rules by providing in clause (c) that "every person", that is to say, a person joining service after the date of the Federation, "shall have at least one right of appeal against any such order as aforesaid "‑an order altering or interpreting to his disadvantage his conditions of service, or terminating his appointment otherwise than upon his reaching the age of superannuation. This last provision, namely, the right of appeal against an order terminating service, was by rule 58 (3) confined to officers appointed by the Secretary of State in Council Section 241 (3) extended it to every "person who before the commencement of Part III of this Act was serving His Majesty in a civil capacity". 14. While on this part of the Act, I should deal with a possible argument‑which was not employed‑that if the Act provided for an appeal against the termination of a person's service otherwise than on his reaching the age fixed for superannua tion, it contemplated permanent services where an age is fixed for superannuation but where, nevertheless, a person's service may be terminated before that age is reached. The Running Commentary on rule 58 (3), however, makes it clear that this provision also related to contracts for fixed or undefined terms. " Generally speaking ", runs the Commentary, "contracts made by the Secretary of State do and will provide for termination of service at notice by the employing Government of India. As the Secretary of State saw the possibility that this right might be exercised without due regard to the equitable exceptions"‑I believe the word is "expectations" of permanent employment with which the officer entered the service, he considered that the officer, as a person appointed by the Secretary of State in Council, should have a right of appeal to that authority if aggrieved by the order terminating his service. The class of case is not a large one." 15. On, the other hand, it may well be argued that if the right of appeal is now on a constitutional basis, and if it is made to extend to every officer holding a civil post, some inquiry must be held before services are terminated, and there can be no conclusive enquiry without the participation of the person in regard to whom it is being held. For if there is . no inquiry, what will be the basis of the appellate authority's decision ? Even under rule 60, such authority was to pass an order which appeared to it "just and equitable", and such an order could not be passed unless the authority knew the reasons which led to the termination of service. And here I may note that howsoever the service rules may distinguish between appeals from "penalties" and appeals from non‑penal orders, in practice the latter category of orders will also be penal in the majority of cases. For if service were terminated because there was no work left, then there is little scope for an appeal, and the appellate authority cannot retain him with any sense of responsibility and feed him on the bounty of the State. Such practice would hardly be less condemnable than the method which has found favour with some Governments of freezing a permanent officer as an Officer on Special duty; his special duty being to draw his salary and try to find work. But if service were terminated even though there was still work left; then obviously it was terminated because the officer's work was unsatisfactory. In that case, if the appellants were not told the reason for termina tion, what would be the ground of his appeal ? I will assume that this reason will be communicated to the appellate authority as the original authority's "expression of opinion" required by rule 66. The appellant, however, not knowing it, will tell the appellate authority that he does not know at all why his services have been terminated. The authority in question will adopt one of three possible courses : (1) he will say to himself, "yes, but I know the . reason, though I will not tell him" ; (2) he will say to the appellant, " I know the reason, but I will not tell you" ; or (3) he will communicate the reason. The first two courses, if adopted, will render the appeal a farce. The third course will provoke a challenge from the appellant. If he says " Give me an opportunity, and I shall show that I have been dishonestly discharged ", and he gets no opportunity, then, again, the right of appeal becomes illusory. But if he gets an opportunity, then that is the very opportunity which section 240 (3) wishes to secure, and it is meaningless to postpone it to the stage of appeal. 16. Now for the argument that section 240 (4) recognizes service under contract. That is true, but this provides yet another instance of the different treatment which' the Act accords to the same matter in the rules. Rule 46 (3) says that an agreement of service may provide that "the person with whom it is made shall not ‑be dismissed otherwise than on payment to him of compensation ‑" This, as f have already noticed, was intended to give effect to the Lee Commission's Report on contract officers. Section 240 (4) says that "any contract under which a person, not being a member of a Civil Service of the Crown in Pakistan, is appointed under this Act to hold such a post may, if the Governor‑General, or, as the case may be, the Governor, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is ‑abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post". Thus (1) the contracting officer contemplated by the Act does not belong to a civil service ; (2) he is employed with a view to securing the services of a person having special qualifications ; and (3) he is compensated only if he is required to vacate the post he holds for reasons not connected with any misconduct on his part. This will not be dismissal, and the word "dismissal", which is used in the rule, is, therefore, not reproduced. 17. It is, therefore, not reasonable to argue that because the Act draws on the Rules, the provision in the Explanation to rule 49 that "the discharge of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal " should be regarded as a part of section 240 (3). If that were so, then since the Act was drawing freely on the Rules, the provision relating to discharge could also have been reproduced. It may indeed be argued that the framer of the rule thought that without an Explanation the word "removal" would include discharge also, and he wished to exclude it ; that the draftsman of the Act also knew the same thing, but as he did not wish to exclude it, he did not follow the language of the Explanation. 18. But taking the Explanation itself, is it clear that clause (c) thereof (which relates to discharge under the terms of a contract) contemplates permanent service which is nevertheless subject to discharge? To understand clause (c), we should go to rule 56 (b) (i), which provides an appeal from an order discharging a person from service in accordance with the terms of his contract if he has been engaged on a contract for a fixed or for an indefinite period" and has rendered continuous service for a period exceeding five years. The Running Commentary on rule 56 is of extreme importance. It says that "clause (b) of this rule qualifies the effect of item (c) of the Explanation under rule 49, which states that the discharge of a person engaged under a contract in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of that rule. The Secretary of State expressed apprehensions regarding the position of such classes of officers as temporary engineers who, though engaged on a yearly contract, could with reason look forward to continuous service so sub‑clause (i) of this clause provides an appeal against discharge where such expectations have been encouraged by continuance in service for a period exceeding five years". 19. It would thus appear that clause,(c) of the Explanation did not contemplate permanent service any more than clause (b) did. I have already pointed out, while discussing agreements of service under rule 46, that this rule was concerned with agreements relating to temporary service, and that there was no other rule on the subject in the Civil Services (Classification, Control and Appeal) Rules. If, therefore, the draftsman of the Act had the Civil Services Rules before him in the drafting of Part X, it should appear reasonable to assume that the Concept of a permanent service subject to a notice of discharge, as contemplated by .Railway Rule 148 (3), was not present .to his mind. 20. If we regard section 240 without any thought of the Civil Services Rules, we do not find it difficult to interpret the provisions of subsection (3), where, of course, "dismissal" includes "removal". Some of the Indian rulings take the view that dismissal and removal imply the imposition of a penalty, and in normal cases that is true. But if a person is removed by arbitrary action ; if he is told that although his conduct is blameless, the head of the department needs a vacancy for another candidate, will this statutory safeguard be of no avail to him will his case be less worse than that of a person who is removed for misconduct? That is what the Indian rulings do not consider. In one case, Ramesh Chandra v. State of West Bengal (A I R 1953 Cal. 188), where the contrary view was taken, the Judges noticed the anomaly of the position that while reduction in rank was actionable, total efface ment from service through the process of discharge was not actionable. The position may be justified by the argument that the person in service has himself agreed to it, but the anomaly of it nevertheless cannot go unnoticed. 21. I said that the argument that dismissal or removal implies a penal action overlooks a possible case of arbitrary removal without misconduct. It is sometimes argued that this is not a "possible" case, because it does not generally happen, and that, consequently, the framers of the Act could not have contemplated it. But if the Constitution was framed in contempla tion of reasonable and reasonably intelligent persons only, to whose cultured minds arbitrary and dictatorial conduct was unknown, why was it assumed that reasonable opportunity to show cause against dismissal or reduction would not be given to any particular person, and that consequently there should be a constitutional safeguard about it? Why did the Privy Council observe in Venkata Rao's case (A I R 1937 P C 31), that section 96‑B of old Government of India Act, 1919, contained "a statutory and solemn assurance that the tenure of office, although at pleasure, will not be subject to capricious or arbitrary action, but will be regulated by rule", if capricious and arbitrary action were beyond contemplation ? 22. Even if removal implies punishment, the effect of discharging a person from perm nent service cannot be anything but penal. He is not discharged from permanent service merely because there is a term in his contract that he may be discharged at notice and the Railway Department gives effect to it from time to time lest its utility be forgotten. He is discharged in the middle of his career because his conduct is unsatisfactory; but he is asked to please himself with the thought that dissatisfaction has not been expressed. The economy of the Railway Department thus becomes more difficult of scrutiny than the economy of heaven, where people die at all ages and have become accustomed to premature fatality. But, on the assumption that everything is done above board, we expect a stock‑taking of a servant's conduct and a decision by a responsible authority that he is not fit to continue till the age of superannuation. In this stock‑taking, however, he is not allowed t participate. There may be people in the office who do not like him. There may be,, conduct on his part which has been grossly misrepre sented to the superior authority, conduct which he may be able to explain or show in a less favourable light. The reason why discharge in accordance with the terms of contract is a vicious institution in service is that we are taking a decision in regard to a person's conduct‑we hold him guilty of misconduct‑without informing him why we are doing it. We cause to him the loss of a career, we upset his ordinary expectations upto a certain age, without giving him an opportunity to meet the charges against him. We tell him there are no charges against him, and we are not ashamed of making a false statement. In short, we are dishonest. 23. This attitude of dishonesty is mastered by an anxiety to eschew the constitutional guarantee that removal from the Civil service will be subject to a reasonable scrutiny. It has unfortunately become a feature of all service which is subject to a "discharge" notce. Then it is sometimes argued that discharge subject to notice has the advantage of securing to the public servant future employ ment which he will not get after an enquiry and dismissal. The fraudulent imposition of a dishonest person on another depart ment, which a discharge in these circumstances necessarily entails, and the consequent injury to public service is overlooked by this argument. But as I tried to explain in Raja Muhammad Afzal Khan's case (P L D 1957 Lah. 17) reputation travels from one department to another, and haunts the discharged person's career in every new undertaking. 24. In effect, an order of discharge is an order of removal. In Noorul Hassan's case, where the services of temporary servants were terminated for "unsatisfactory" work, Mr. Justice Cornelius observed:‑ "The formula employed was that of saying that services of these persons were dispensed with ; and there is, of course, no specific provision in the Act dealing with the process of dispensing with the services of persons holding `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 * * * * *. Both effectively as well as categorically, the order is indistinguishable from an order of dismissal or removal. It is supported by a statement of the reason for the determination of service in each case, viz., that the work of the public servants in question had been found unsatisfactory". It is to be noticed that the reason for the termination of service was not regarded essential to the quality of the order; that reason merely "supported" the order. Consequently, where the effect or "termination" is to remove from employment, whether or not it is supported by the reason that work was unsatisfactory, it should be regarded as removal within the meaning of section 240. 25. Discharge "in accordance with the terms of a contract" is by itself unexceptionable so long as it is understood to be a faultless discharge, impelled by the necessity of the employer, as when staff is adjusted by a commercial concern to its out‑turn and profits. It is true that a commercial concern may also resort to this device when it wants to get rid of an undesirable person, but as I have said before, the elaborate process of an inquiry and dismissal with the possibility of getting landed in litigation, is unsuitable to a commercial concern, The Civil service, on the other hand, has become subject, in the process of development, to an elaborate system of rules and been strengthened by constitu tional, guarantees, and is fast leaving behind the conception of discharge at notice as a vestige of commercial days. And this is as it ought to be, because while despotism in private service is always tempered by the fear that it may repel talent, the insecurity of tenure which characterises the governments of the present day can hardly furnish them with a motive to impart security to the civil service. 26. It is possible to argue on this reasoning that compulsory retirement also amounts to removal. I am referring to retirement. not after reaching the age fixed for superannuation, but after service for a term, normally of twenty‑five years, which entitles to full pension. This is made applicable to cases where either by reason of his inefficiency the services of a person are not commensurate with the emoluments he draws, or by reason of his dishonesty which is not provable, it is not desirable to retain him longer, It is true that an extreme view may go to the length of holding that. in such cases also an opportunity should be given to him to show cause why he should not be retired, and I think this is a safe way of retiring him, because I believe that, as far as possible, things must always be done above board. But if this is not done, then since a line must be drawn somewhere, between what is reasonable and what is not reasonable, I think it is permissible to fix an age, not so far from the age of superannuation, when a person may be retired by reason of a consistently bad record, earned in the course of a quarter of a century under different persons and different Governments, without loss of pension. This, I say, will be a, proper drawing of the line between a premature discharge and a premature retirement, 27. Lastly‑though that was, and ha,, always been, the first, tile foremost and the most favourite argument of Mr. Mahmud‑1 address myself to the argument based on subsection (1) of section 240, that service is "during pleasure". It used to His Majesty's pleasure, and it has descended now to the President and the Governor, and, in three of these particular cases, to the General Manager. If it were confined to the conventional form in which the Governor is "pleased" to make an order, there would be nothing but pleasure in it. But it is argued that since a person holds office during His Majesty's pleasure, he has no vested right to remain in service. This, in its broad sweep, is a remarkable argument, since the words "Except as expressly provided by this Act" in subsection (1) allow the pleasure of His Majesty to be superseded by the express provisions of subsections (2) and (3), and even the Privy Council, which had manifested such reluctance in Rangachari's case (AIR 1937 P C 27) to embarass the executive Government, observed in I. M. Lall's case (P L D 1948 P C 150) that "the provision as to a reason able opportunity of showing cause against the action proposed is * * * * * mandatory, and necessarily qualifies he right of the Crown recognized in subsection (1) of section 240". In a narrow compass, however, it may have been Mr. Mahmud's argument‑though I have no clear recollection of it that since service is during pleasure, there is no restriction on making it subject to discharge. This does not advance the case any further, because if discharge is held to be a species of removal, whether absolutely or in given circumstances, the case will fall under subsection (3), and subsection (1) will not apply. But since we have been taken as far back as Shenton v. Smith (1895 A C 229) and Dunn v. The Queen ((1896) 1 Q B 116), it is only proper that the scope of His Majesty's pleasure today should be made subject to scrutiny. 28. Shenton v. Smith was relied upon by the Privy Council in venkata Rao's case, but the reasoning on which Shenton v. Smith was based is not applicable to present conditions. Their Lord ships considered 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 engage ment, as is well understood throughout the public service". This is not so well understood in our services; which have generally been regarded as subject to rule, and it is only when a person comes to the Court that he is told about His Majesty's pleasure. If, therefore, it was not based on the special prerogative of the Crown, and it was not "well understood throughout the public service", it ceases to have a firm basis "As for the regulation' their Lordships went on, "they are merely direction given by the Crown to the governments of Crown Colonies for general guidance and.* * * *they do not constitute a contract between tile Crown and 'is servants. In the heading _they are stated to be `printed‑ for the information and guidance of the Governors of Her Majesty's Colonies'." This conception of the rules is novel for today. Even in 1937; when Venkata Rao's casa was being decided, it was novel, because Lord Roche observed, with reference to the status conferred upon rules by section 96‑B, Government of India Act, 1919, that "the tenure of office, though at pleasure, will not be subject to capricious or arbitrary action, but will be regulated by rule." 29. It is not conducive to healthy administration that a rule should be regarded as a mere guidance without a binding force, and it does not encourage a feeling of security in a person to tell him that rules are intended for the use of the employer, not of the employee. In any case, this conception of the rules should disappear with the disappearance of Crown Colonies. 30. Dunne v. The Queen ((1896) 1 Q B 116), which was decided by the Queen's Bench later the same year, has a broader basis. The petitioner had been appointed consular agent for the Niger Protectorate for a period of three years, but had been dismissed earlier. Lord Esher M. R. relied on the following remarks of Lord Watson in the House of Lords : "In the first place, it appears to me that no concluded contract is, disclosed in the statements contained in this petition of right, and in the second place I am of opinion that such a concluded contract, if it had been made, must have been held to have imported into it the condition that the Crown has the power to dismiss. Further, I am of opinion that if any authority representing the Crown were to exclude such a power by express stipulation, that would be a violation of the public policy of the country and could not derogate from the power of the Crown." This means that service is at pleasure as a matter of public policy, and this is implied in every contract of service. Lord Herschell in the same case excepted "cases where there is some statutory provision for a higher tenure of office", but otherwise believed it to be in the "public interest" that such a term should be implied in service. Lord Justice Kay went further: "It seems to me that the con tinued employment of a civil servant might in many cases be as detrimental to the interests of the State as the continued employ ment of a military officer. It is impossible not to see that in remote places on the frontiers of our territory the question of peace or war might depend on the action of a civil servant on the spot, and it seems to me that there is as much ground for the possession by the Crown of an unrestricted right of dismissal in the case of civil service as there is in the case of military service. * * * * * In my opinion, Sir Claude. McDonald had no power to appoint a subordinate officer for a definite term, so as to bind the Crown not to dismiss before that time expired." 31. No one will now think of applying that reasoning even to temporary service for a fixed term. But even in 1896, where conditions of service were regulated by a Civil Service Act in New South Wales, the Privy Council observed in Gould v. Stuart (1896 A C 575) with respect to a clerk who had been dismissed in a manner not provided by the Act, that the provisions of the Act "which are manifestly intended for the protection and benefit of the officer, are inconsistent with importing into the contract of service the term that the Crown may put an end to it at pleasure. In that case, they would be superfluous, useless and delusive. This is, in their Lordship's opinion, an exceptional case, in which it has been deemed for the public good that a civil service should be established under certain regulations with some qualifications of the members of it, and that some restriction should be imposed on the power of the Crown to dismiss them." 32. Between Dunne v. The Queen and Gould v. Stuart there was the space of seven months only ; yet "public good" changed sides from the Crown to the public servant. The latter kind of public good, which is concerned with the establishment of a. civil service under certain regulations, and with the imposition of restrictions on the Crown's pleasure, has assumed such importance during the course of the last half‑century that it is now a part of our Constitution, and by Article 182 (3), no future Act or rules can alter the tenure and conditions of service of any person to his disadvantage. 33. In British India, His Majesty's pleasure received statutory recognition in section 96‑B, Government of India Act, 1919, which is as follows :‑ (1) Subject to the provisions of this Act and of the rules made thereunder, every person in the Civil Service of the Crown in India holds office during His Majesty's pleasure, and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may be dismissed by, any authority subordinate to that by which he was appointed, and the Secretary of State in Council may (except so far as he may provide by rules to the contrary) reinstate any person in that service who has been dismissed. If any such person appointed by the Secretary of State in Council thinks himself wronged by an order of an official superior in a Governor's Province, and on due application made to that superior does not receive the 'redress to which he may consider himself entitled, lie may, without prejudice to any other right of redress, complain to the Governor of the Province in order to obtain justice, and the Governor is hereby directed to examine such complaint and require such action to be taken thereon as may appear to him to be just and equitable. (2) The Secretary of State in Council may make rules for regulating the classification of the Civil Services in India, the methods of their recruitment, their conditions of service, pay and allowances, and discipline and conduct. * * * * * (5) No rules or other provisions made or confirmed under this section shall be construed to limit or abridge the power of the Secretary of State in Council to deal with the case of any person in the Civil Service of the Crown in India in such manner as may appear to him to be just and equitable * * * * * *. 34. In Venkata Rao's case, dismissal of a public servant had resulted after an inquiry. which their Lordships held to have disregarded "a most definite and salutary rule * * * * * in most essential respects", and the question was whether section 96‑B gave a right to him enforceable by action to hold office in accordance with the rules. Their Lordship's answer, which like many another pronouncement of their Lordships, has become historic, was in these words: "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 and 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 particularity and are all capable of change." 35. It will be noticed that the opening words of section 96‑B made His Majesty's pleasure not only "subject to the provisions of this Act", but also of "the rules made thereunder". In respect of one provision of the Act, namely, that no person may be dismissed by an authority subordinate to that by which he was appointed, their Lordships held in Rangachari's case which they decided on the same day that its violation made the dismissal "bad and inoperative". On the clear language of the statute, it is re3pvctfully submitted, pleasure is made subject to rules also which are made under the Act, and if Parliament chose to create "a limited and special kind of employment during pleasure, but with an added contractual term that the rules are to be observed", it was doing no more than it did when it also added a contractual obligation that other provisions of the Act were to be observed. The argument for such special kind of employment is not any more artificial in the one case than in the other, though it may be far reaching. And it was not regarded artificial in I. M. Lays case, when the words "Except as expressly provided by this Act" employed in section 240 of the Statute of 1935 were held to qualify the pleasure of the Crown. 36. Their Lordships' real objection was not, therefore, to the creation of an artificial kind of pleasure, but to the fact that rules are manifold in number, minute in particularity and all capable of change. In 1935, however, the statute also "changed" and elevated one provision of rule 55 of the Classification Rules to the status of subsection (3) in section 240. But their Lordships' further argument was that "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. Since in Noorul Hassan's case the learned Chief Justice did not agree with Mr. Manzoor Qadir that these were "imperialist considerations", 1 should subdue the misgivings which have assailed me for years now, and merely observe that the Legislature of this country did not share the opinion of their Lordships when, by the introduction of section 223‑A, it empowered the Courts to control Government in the most detailed work of the administration. As in England such control existed in respect of all public offices not subject to pleasure, their Lordships were apparently laying down the law for India. 37. Their Lordships observed that there was another con sideration "of the utmost weight", namely that section 96‑B and the rules made careful provision for the redress of service grievances by administrative process and, that subsection (5) "in conclusion reaffirms the Supreme authority of the Secretary of State in Council over the civil service." When it was pointed out that this was to treat the words "subject to the rules" as "superfluous and ineffective", their Lordships made another historic observation which has become famous as condemnation of arbitrary action: "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." Their Lordships then made it clear that although they were not conceding a right to the Courts to decide these matters, redress should be given by administrative process, since "to give redress was the responsibility, and their Lordships can only trust will be the pleasure of the Executive Government." 38. I cannot say with sincere conviction that their Lordships themselves refused to give redress because it was a matter of rules, and because rules are infinite in number, minute in particularity and capable of change. For in Rangachari's case, which gave their Lordships "great anxiety" because dismissal in that case had been effected by an authority subordinate to that which had appointed Rangachari, and where, consequently, a statutory provision had been disregarded, they still refused to give a declaration and expressed themselves as follows :‑ "The questions of fact and law are now decided and a declara tion could have no greater effect than the decision itself. After this lapse of time and having regard to his health no one suggests that the appellant can now be restored to his office, and the matter of pension and the responsibility of doing right in that regard rests with the Government." 39. In relation to these remarks, Mr. Justice Cornelius observed in Noorul Hasan's case "The essential question was not of restoration to active service, but restoration of a pension, which had been asked for and allowed with all due formality by the Government." 40. Holding that the decision of a thing amounted to a legal declaration in respect thereof, their Lordships told the Government that "there was yet time and opportunity for the appropriate action to be taken" and had no doubt that it would be taken. 41. The psychological basis for these two decisions was provid ed by two interdependent frames of mind‑the reluctance to permit Courts to control the Government in the most detailed work of managing its services and the confidence which their Lordships had in administrative process culminating in the Supreme authority of the Secretary of State. This confidence was echoed in Westminster Hall when, in the course of parliamentary debates on the Govern ment of India Bill, 1935, some doubt was expressed as to the security of tenure provided for the services. After all, there was a Secretary of State with a complete outfit of Advisors, and there was the Governor‑General, who could deal with the case of any person in such manner as may appear to him to be just and equitable, notwithstanding any rules, and notwithstanding any Act of the Legislature. (Section 96‑B (5) of the old Act and section 241 (5) of the new Act.) But when in 1948 the Secretary of State was replaced by the High Commissioners for India and Pakistan‑not as an appellate authority but for the purpose of defending litigation‑the Privy Council, in the cases of I. M. Lall and Suraj Narain Nand, while basing its decision on the reasoning in Rangachari's case, had no hesitation in advising His Majesty that a declaration should be given that the orders of dismissal were void and inoperative. It was not then said that the questions of fact and law having been decided, it was unnecessary to give a decision, because to give redress was the responsibility and the pleasure of the Crown. If, therefore, we are consistent in our reliance on the first two decisions, we should hold, on the attitude of the Privy Council in the next two cases, that the Court can no longer transfer its own responsibility to administrative process. 42. And let me add, in my humble way, that if pleasure is subject to statutory provisions, it is also subject to statutory rules. According to subsection (2) of section 241, conditions of service "shall" be such as the rules may prescribes, "except as expressly provided by this Act", and the exception only means that where it is provided, as in section 240 (3) that dismissal should be preceded by a reasonable enquiry, then the rules cannot dispense with such an enquiry. But if it is argued that although the rules provide for pension, then since they are subject to the pleasure clause in section 240 (1), pension can be withheld if it pleases the Governor General, then I must say that the argument gives me the same anxiety as it gave to their Lordships of the Privy Council in Rangachari's case, only in a less exalted manner. I believe, very respectfully but without hesitation, that pleasure is subject t statutory provisions and to rules, and that so little of it is no left in substance that it was hardly desirable to retain its lurking shadow in Article 170 of the Constitution. It now amounts to no more than that, if according to the law and the rules a decision is to be taken in regard to a civil servant, it will be the pleasure of the Governor or the President to take that decision. This pleasure" he will have both when he appoints and when he dismisses. 43. I shall now finalise my views for the purpose of the present cases. Termination of service or discharge, whichever term is used, amounts to removal and attracts subsection (3) of section 240. Where discharge is provided by rule or agreement r subsection (3) only means that the person concerned will be told why he is being discharged, so that, if the reason given is dishonest, he can oppose it. Even if the number of posts has been reduced and the services of some officers are no longer required, it may be poss ible for one of them to show that it is not reasonable to discharge him when another officer junior to him and of almost equal merit is being retained. It is true that in practice the discharging authority, having already made up its mind, will not be influenced by what is said in reply to a show‑cause notice, but, as I have said earlier, some material will come on the record for the benefit of the appellate authority, and in any case, the appeal will not be dismissed solely on the ground that a discharge is not a penalty. As no opportunity was given in the present cases, the decisions of the Courts below are correct and the appeals should be dismissed with costs. SHARIR AHMAD, J.‑I agree with my Lord the Chief Justice and have nothing to add. MUHAMMAD YAQUB ALI, J.‑As the facts giving rise to these appeals have been succintly set out in the judgment of my Lord the Chief Justice, I have considered it unnecessary to encumber my judgment with their repetition. I have also refrained from referring to the large number of authorities cited from .the Bar, because each one of them has been dealt with by his Lordship and I could not improve upon their exposition. 2. The question before the Full Bench is whether termination of the appointment of a civil servant by giving him notice in accordance with his contract of service amounts to "removal" within the scope of section 240 (3) of the Government of India Act, 1935, (hereinafter referred to as the Act) and it is necessary to give him an opportunity to show cause against the action proposed or to put it in other words whether any contract which purports to authorise the appropriate authority to terminate the services of a permanent civil servant at any time on giving him notice for a prescribed period without affording an opportunity to show cause against it is ultra vires of the provisions of section 240 (3) of the Act. 3. On behalf of the Government it was contended that as under section 240 (1) of the Act all civil servants hold their appointments during the pleasure of the Crown and now of President of the Federation their services could be terminated at any time without assigning any cause and that section 240 (3) applied only to cases in which services were terminated by way of a penalty, i.e., carrying a stigma and resulting in forfeiture of benefit of service already rendered. In support of this submission reliance was also placed on the English doctrine that all public servants hold office during the pleasure of the Crown and that in the absence of any statutory provision, the common law rule regulating the relationship of a master and servant applied equally to public servants. The counsel for the plaintiffs to the contrary maintained that the services of permanent civil servants could not be terminated before attaining the age of superannuation and if they were asked to vacate their posts for whatsoever reason it amounted to their dismissal or removal, which attracted the application of section 240 (3) of the Act. Any contract or condition of service which dispensed with this ‑constitutional requirement was, in their opinion, illegal and void as repugnant to the aforesaid provisions of the Act. The doctrine that as a matter of public policy all servants held office during the pleasure of the Crown was not admitted to be applicable in this country as the law on the subject had been codified in the Act. 4. The answer to the above question depends on the proper construction of sections 240 and 241 of the Act. After affirming in subsection (1) that all civil servants and holders of civil posts hold office during His Majesty's‑ pleasure, section 240 ‑proceeds to provide some safeguards for such persons. Section 241 inter alia makes provision for prescribing conditions of service of ‑ civil servants .by means of rules which have to be so framed as to secure some further safeguards for them. To the extent of the safeguards provided in, both these sections the pleasure of His Majesty is thus regulated and abridged. Subsection (2) of section 240 lays down that a civil servant shall not be dismissed from service of His Majesty by any authority subordinate to that by which he was appointed in case of person appointed by the Secretary of State the authority being the Governor‑General or the Governor according as that person is serving in connection with the affair of the Federation or a Province. Subsection (3) provides that no such person 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. By virtue of section 277 of the Act dismissal includes removal from His Majesty's service. There is a proviso to the subsection which is not relevant for the present. Subsection (4) authorises the Governor‑General or the Governor, as the case may be, to provide for payment of compensation to a person who not being a member of a civil service of the Crown holds such a post under a contract if before the expiration of an agreed period that post is abolished or he is required to vacate that post for reasons not connected with any misconduct: This authority has been con ferred notwithstanding that a person who holds a civil post under the Crown holds office during His Majesty's pleasure; thus making it clear that one of the incidents of holding office during His Majesty's pleasure is that a civil servant cannot as of right claim compensation if his services are terminated on account of abolition of the post held by him or if he is removed before the agreed period. Any contract to the contrary would, therefore, have been void as repugnant to subsection (1) of section 240 but for the special provision contained in subsection (4). Section 241 (1) deals with appointments to civil services. Subsection (2) lays down that except as expressly provided by the Act conditions of service of persons serving His Majesty in a civil capacity shall subject to the provisions of this section be such as may be prescribed by the Governor‑General 6r the Governor, as the case may be. There is a proviso to the subsection which dispenses with the requirement of framing rules and 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. This class of employees .is, therefore, not entitled to the safeguards contained in section 241. Subsection (3) provides what may be described as statutory conditions of service. Clause (a) provides certain safeguards for persons who before the commencement of Part III of the Act were serving His Majesty in a civil capacity. Their conditions of service cannot be altered to their disadvantage, except by the authority competent to do so on the 8th March 1926 or by the Governor‑General or the Governor, as the case may be. Clause (b) secures to the aforesaid civil servants a right of appeal to the same authority from any of the following orders as they had :‑ (i) Punishment or formal censure. (ii) Alteration or interpretation to their disadvantage of any rule by which their conditions of service are regulated. (iii) Termination of the appointment otherwise than upon reaching the age fixed for superannuation. Clause (c) of subsection (3) makes' all these safeguards applicable to other persons serving His Majesty by conferring on them a right of app‑‑al against any such orders as aforesaid. 5. Subsection (4) empowers appropriate legislature to regulate the conditions of service of persons serving His Majesty in a civil capacity provided that nothing in any such Act shall deprive any person of any right required to be given to him by the last preceding subsection. It may be noted that a right of appeal against any order terminating appointment of such persons otherwise than upon their reaching the age fixed for superannuation is thus a right which cannot be taken away even by an Act of the appropriate legislature. 6. Subsection (5) preserves what may be called the prero gative of the Governor‑General or the Governor to deal with the case of any person serving His Majesty in a civil capacity in such manner as may appear to him to be just and equitable, provided that his case shall not be dealt with in any manner less favourable to him than that provided by any Act or rule. 7. A fair analysis of these two sections will lead to the following conclusion :- (i) All civil servants hold their appointments within the pleasure of His Majesty. (ii) The pleasure is regulated and abridged to the extent of safeguards and rights conferred on such persons by the pro visions of these two sections or by rules framed thereunder or by any act of the appropriate legislature. (iii) Among others, these safeguards provide (1) that no such person shall be dismissed or removed except for good and sufficient reason (2) that before such a penalty is imposed, the employee shall be given an opportunity to show cause against the action proposed, (3) that an age of superannuation shall be fixed for terminating appointments of the civil servants and (4) in case of termination before reaching that age, the civil servant concerned shall have the right to contend against it by way of an appeal. 8. During the course of hearing of these appeals it was not denied that if the word "removal" was given its dictionary meaning, the termination of appointments of civil servants before reaching the age of superannuation would be included in it but it was contended that the word "removal" has been used in a technical sense, i.e.; in the same sense in which it finds its place in Rule 49 of the Civil Services (Classification, Control and Appeal), Rules, framed under section 241 of the Act. The rule is in following terms "The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the classes (1) to (5) specified in rule 14, namely : ‑ (i) Censure. (ii) Withholding of increments or promotion, including stop page at an efficiency bar. (iii) Reduction to a lower post or time‑scale, or to a lower stage in a time‑scale. , (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. (v) Suspension. (vi) Removal from service of the Crown, which does not dis qualify from future employment. (vii) Dismissal from the, civil service of the Crown, which ordinarily disqualifies from future employment." There is an explanation to the rule which provides that the discharge‑ (a) of a person appointed on probation during the period of probation, (b) of a person appointed otherwise than under contract to hold a temporary appointment, on the expiration of the period of the appointment, (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. On the basis of this rule it was contended that section 277 of the Act mentions "dismissal and removal" as penalties enumerated above arid not in their dictionary meaning and that the explanation to the rule makes it implicit that the Government may enter into a contract with the civil servants under which their appointments could be terminated at any time with or without notice. This forms the reasoning in most of the authorities which have taken the ‑view that termination of appointments of temporary as well as permanent servants in accordance with their service agreements does not amount to removal within the scope of section 240 (3) of the Act. It is; therefore, necessary to examine the provisions of rule 49 and other relevant, rules a little more closely. Leaving aside clause (a) of the explanation to rule 49, which ' is not relevant for the purpose, clauses (h) and (c) make it abundantly clear that except in cases covered by them discharge from service of a civil servant shall amount to removal arid cannot be imposed except by way of penalty for good and sufficient reason. The argument that if the services of a civil servant are terminated otherwise than by way of penalty, i.e., carrying a stigma and resulting in forfeiture of benefits of service already earned than alone the provisions of sub section (3) of section 240 are attracted is, therefore, negatived by the explanation itself. Thus even in case of a temporary employee, discharge before the expiration of the period of appointment shall amount to removal or dismissal and a decision to this effect of the late Government of India in 1930 is mentioned below rule 49 quoted above. It follows that in case of a permanent servant termination of his appointment before reaching the age of superannuation would amount to removal or dismissal and the motive with 'which such an order has been made and what incidents will flow from it would be wholly irrelevant. An objection was, however, taken that as the protection contained in section 240 (3) applies equally to temporary and permanent civil servants, if the above proposition was correct then the appoint ments of the temporary employees could never be terminated except by way of penalty, because in their case it was not necessary even to fix an age of superannuation and in fact none has been provided for in the rules. The argument suffers from more than one infirmity. Firstly in the proviso to suction 241 quoted earlier, it is implicit that Government may engage temporary employees whose services may be terminated on giving one month's notice or less. Secondly as no age of superannuation is to be fixed in their case, the protection contained in subsection (3) of section 241, namely, that no civil servant shall be asked to vacate his post before attaining the age of superannuation, is not available to them. Thirdly clause (b) of the explanation to rule 49 itself lays down that the discharge of a person appointed to hold temporary appointment otherwise than under a contract on the expiration of the period of appointment does not amount to removal or dismissal. Now in case of permanent employees the period of appointment is fixed by the age of superannuation while in case of temporary employees it may be fixed in more than one ways, i.e., by the expiration, of the period for which appointment was made, the completion of the work for which they were temporarily employed, the abolition of the post or in case of appointment, for indefinite period by issue of one month's notice or less as may be provided for in the service agreement or conditions of service: If the appointment is for a fixed period it comes to an end by efflux of time. In case of completion of the work for which appointment was made or if the post is abolished, the same incident follows. In case of indefinite period, the period of appointment is fixed on the issue of notice. As noticed above, even in case of temporary employees if they are asked to vacate their posts before the fixed period, whether by way of penalty or not, it will amount to their removal or dismissal because the underlying principle is that no employee can be removed before the expiry of the period of appointment, except by way of penalty. In either case, the provisions of section 240 (3) will equally apply to them as to permanent civil servants. The objection that if termination of service otherwise than by way of penalty was included in the scope of section 240 (3) the services of even temporary employees could not be terminated on giving one month's notice, has, therefore, no force. 9. We are now left with the third category of civil servants, namely, those engaged under a contract and whose services may be terminated at any time, as contemplated in clause (c) of the explanation : to rule 49. This class of servants is referred to in subsection (4) of section 240 of the Act; reproduced earlier‑ It is only if the Governor‑General or the Governor, as the case may be, deem it necessary in order to secure the services of a person having special qualifications, that such person may be employed under a contract providing for the payment of compensation if before the expiration of an agreed period that post is abolished or for reasons not connected with any misconduct on his part, he is required to vacate that post. There is also a provision in the rules (rule 46) for making special agreement in respect of conditions of service, pay and allowances (pension, discipline and conduct with reference) to any particular post, or any of them. The rule provides that if in the opinion of the controlling authority special provisions inconsistent with the civil service rules or any rule made thereunder are required in respect of conditions of service, pad etc to any particular post or any of them, it shall he open to the controlling authority subject to the provisions of rule 10, to provide by agreement with the person appointed to such post for any of the matters in respect of which in the opinion of the controlling authority special provisions are required to be made and to the extent to which such provisions are required to be made. No other provision has been brought to our notice which envisages engage ment of employees under contracts referred to in clause (c) of the explanation to rule 49. Persons mentioned in rule 46 are of extraordinary class and if the rule is read, in its proper context, the impression one gathers is that it is intended to confer special privileges on incumbents of particular posts or any of them for which special qualifications are required. Para. (2) of the rule empowers the Secretary of State in Council, in lieu of the controlling authority to enter into such an agreement. It indicates employment of persons with special qualification perhaps to be largely recruited from abroad. Sub‑rule (3) makes it more implicit in providing that save in cir cumstances stated in the agreement, any agreement of the nature referred to in sub‑rule (1) or sub‑rule (2) may provide that the person with whom it is made shall not be dismissed otherwise than on payment to him of compensation by the controlling authority or the Secretary of the State, as the case may be. A perusal of the model form of agreement for officers under this rule will be advantageous in this behalf. Para. 2 provides that the employee shall on arrival in Pakistan forthwith report himself for duty with out' avoidable ,delay as directed by or on behalf of the Governor General. Para. 4, provides for termination of services at the end of the first year by either party without any notice, at any time on three calendar months' notice in writing given by the Governor General if, in his opinion, the employee proves unsuitable for the efficient performance of his duties, by the Governor‑General with out previous notice if he is satisfied on medical evidence that the employee is unfit and is likely for a considerable period to continue unfit by reason of ill‑health, by the Governor‑General or his officers having proper authority without any previous notice if the employee shall be guilty of any insubordination, intemperance or other misconduct or of any breach or non‑performance of any of the provisions of the contract or of any rules pertaining to the branch of the public service to which he may belong and by. six calendar months' notice in writing given at any time during service under the agreement (except during the first year thereof) by either party without cause assigned. The above conditions' of service indicate that clause (c) of the explanation has been specially provided for persons engaged under contracts provided for in rule 46 and not the ordinary employees of the State. The authority to engage the special category of employees contemplated in clause (c) is of course contained in subsection (4) of section 240 of the Act. This clause may, therefore not be interpreted as enabling the Government to recruit persons to ordinary civil posts on the condition that their service may be terminated at any time by giving notice although they have been confirmed in their post and ordinarily not liable to be removed before attaining the age fixed for superannuation. Any other interpretation will, in my view in a very large measure nullify the constitutional safeguards conferred on the employees, to which reference has been made earlier. It is Interesting to note that under rule 56 an appeal has been provided for even in case of persons who have been discharged in accordance with the terms of their contracts if on the date of the termination of their services they had put in continuous five years' service or if such persons were appointed by Secretary of State in Council and the order terminating their employment had been made by any subordinate authority. Thus an employee whose appointment may be termi nated in accordance with his service contract at any time without amounting to dismissal or removal is also deemed to have acquired a right to continue in office until the expiry of the period for which he was employed. After all, the right of appeal means the right to have the order with which the appellant is aggrieved set aside by finding fault with it. And if according to the reasoning of Mr. S. A. Mahmud, the learned Additional Advocate‑General, section 240 (1) of the Act authorises the Crown to terminate the services of any employee, permanent or temporary, at will without assigning cause or if a clause in the contract is availed of for this purpose, then what cause the employee concerned is going to show against such an order. I would like to add here .that a clause In the contract of service that the appointment of a permanent civil servant may be terminated at any time on giving notice cannot have greater sanctity or value than the pleasure clause in sec tion 240 (1) of the Act itself. It shall be deemed to be an integral part of any service contract of a civil servant. In fact the pleasure clause if given the meaning put on it by Mr. Mahmud, Additional Advocate‑General, will render any contract which provides for a notice illegal because it will abridge or fetter the pleasure of the Crown to terminate the appointment of every civil servant at any time without assigning cause. 10. The other view that the right of appeal conferred by section 240 (1) of the Act merely provides a safeguard against arbitrary or capricious action and leaves in tact the right of the Crown to terminate the appointment of any civil servant at will, if I may say so with great respect, suffers from an inherent contra diction. Every railway employee is in accordance with the terms of his contract liable to be discharged from service on giving him a notice for a specified period. In some cases the period is one month, in others three months and in the case of a superior officer as that of Mr. C. S. Khan respondent in Appeal No. 121, six months. There are thousands of employees who fall in one or the other category. If out of them the competent authority Issues a notice of discharge to one while others are retained and an appeal is taken against that order what will be its scope? The order of discharge on the face of it will only show that in' terminating the services of the employee the proper authority has acted in accord ance with the terms of the contract of service or the relevant rule. But since there are others with similar contracts of service who have been retained the order appealed against would remain arbitrary unless the officer who made it‑supports it by some cogent reasons which can be none other than the charge of inefficiency, misconduct or comparative merits. If services of an employee are terminated or he is reduced in rank for a such reason than the case will undoubtedly be covered by the provisions of section 240 (3) of the Act. The net result, therefore, would be that although there is a Condition in the Contract of service under which the se‑vices of railway employee may be terminated at any time without assigning cause yet as there are other employees with similar contracts who are not being discharged the order terminating services of a parti cular employee can be passed only as a penalty which will attract the provisions of section 240 (3) of the Act. On this view of the rules I feel fortified in the opinion that the services of Government employees cannot be terminated before attaining the age of supera nnuation except by way of penalty to be imposed for good an sufficient reason. An order which professes to terminate their services otherwise before attaining that age is unwarranted in law and must at least stand at the same footing as an order of dismissal or removal within the scope of section 240 (3) of the Act. The same rule is applicable to temporary employees if their services are terminated before the expiry of the period of their appointments which is to be determined in the manner stated above. Any contract which seeks to negative these constitutional safeguards will, therefore, be void ab initio. 11. So far I have examined the question before the Full Bench mainly in the light of the Civil Services Rules and the assumption that the word "dismissal" including "removal" has been used in subsection (3) of section 240 of the Act as one of the penalties enumerated in Rule 46. But was it really so ? Section 277 of the Act reads as follows :‑ "In this Part of this Act‑ The expressions "All‑India Services", "Central Service Class I," "Central Service Class II", "Railway Service Class I", "Railway Service Class II", and "Provincial Service" mean respectively the services which were immediately before the commencement of Part III of this Act, so described respectively in the classification rules then in force under section ninety‑six B of the Government of India Act; and references to dismissal from His Majesty's service include references to removal from His Majesty's service." 12. It is significant that the expressions "all‑India Services" etc. have been defined in the terms of classification rules then in force under section 96‑B of the Government of India Act of 1919, and the concluding part of the section, with which we are concerned, does not refer to those rules. Indeed if the Parliament wanted to give statutory definitions to the terms "dismissal" and "removal", i.e., so described in the classification rules, it would have said so specifically, particularly when in the preceding paragraph a number of expressions had been defined in the terms of those rules. I am therefore, of the view that in the absence of any specific provisions in the Act, there is no warrant for giving other than dictionary Q meanings to the words "dismissal" and "removal". 13. The word "dismiss" is defined in the Oxford Dictionary as (1) to send away or remove from office, employment or position; (2) to deprive or disappointment of or from some advantage; (3) to discard, reject; (4) to put away, lay aside, get rid of; and (5) to deprive or exclude oneself from a legal advantage. Similarly in Webster's Dictionary "dismiss" is defined: to deprive (of) or cut off (from), to put away, to get rid of, to reject. The word "removal" is defined in the Oxford Dictionary as the act of taking away entirely or shifting to another place, the act of changing one's ground place or position. "Remove" is defined as the act of removing a person from a position or office, dismissal, but now rare in use. The other relevant definitions are: The act of transferring a person from one office‑or post to another, to move, shift, transfer, or convey from one place to another, to change the place or situation. 14. The words, "dismissal" and "removal" have thus different' connotations, although some of the definitions convey the same! meaning. The word "dismissal" appears to be associated with the act of depriving a person of some advantage, while the world "removal" or "remove" primarily convey the meaning of moving, shifting, transferring or conveying from one place to another The word "dismissal" used in section 240 (3) may, therefore, mean termination of service with a stigma as well as entailing penalties and forfeiture of certain benefits of service already earned but there will be no such warrant for interpreting the word "removal" in that sence. Indeed if the meaning of the word "dismissal" ordinarily included "removal", the Parliament would not have made a sepa rate provision to declare the first obvious. If the word "removal" is given its dictionary meaning then there is no dispute that the termination of service of a permanent employee before his attaining the age of superannuation and of a temporary employee before the" expiry of the period of his appointment will attract the application of section 240 (3) of the Act. I would like to point out at this stage that in case of temporary employees it inheres that there is no fixed period of their appointments except to the extent it may be specifically provided for. Thus in case of indefinite appointment the services of temporary employees may be terminated at any time with or without notice according as it may have been provided for in their contracts of service. It will, therefore, follow that if the contract be that service may be terminated on three months' notice, there will be nothing illegal in it although the case is not covered specifically by the proviso to section 241, the case of permanent employees is, however, different. In their case, it is equally inherent that they have a right to continue in service for the prescribed tenure and except for good and sufficient reasons, they cannot be asked to vacate their posts. If that was not so, there will be no difference between temporary and permanent employees. 15. As to the doctrine that all civil servants hold office during the pleasure of the Crown, if the interpretation I have put on sections 240 and 241 of the Act be accepted correct there shall then be no conflict between subsection (1) of section 240 which embodies this doctrine and the remaining provisions of the Act referred to earlier. It may be asked what then is the scope of that pleasure. Take the case of an ordinary master and a servant. If between them, there is a contract of service, say for ten years, the former may, at any time, terminate the latter's service but he will be liable to pay compensation for breach of agreement. The Crown is not liable to any such incident and this becomes amply clear from the provisions of subsection (4) of section 240 of the Act. Similarly, if the Crown wants to reduce the number of posts or direct a general retrenchment, the employees affected by such order will have no cause of action, but in case of a master and servant the latter has undeniable that right. It should also be kept in view that the safeguards embodied in sections 240 and 241 were made part of the Constitution at the time of transferring semi‑freedom to this sub‑continent. The authors of the Act had certainly realized that it will take a long time before healthy constitutional conven tions are laid down and the politicians do not tamper with services who in the discharge of their duties may often have to offend some of the high ups in the political set up of the country. In the altered conditions of our country as may, therefore, justifiably interpret and apply the doctrine of "pleasure" in a more realistic meaning and, if necessary, even depart from the viewpoint of the British constitutional justice. 16. This incidentally disposes of the plea that in the absence of any statutory provisions the common law rule regulating the relationship between master and servants should be held applicable to civil servants. Mark the difference between the incidents of service of a temporary employee and a civil servant. I have men tioned above that in the case of a temporary employee he has a right to claim compensation for breach of the agreement of service to which a civil servant is not entitled. The principle underlying the relationship of a private master and a servant is that the former must have complete confidence in his employee and therefore no one can be thrust as an employee on an unwilling employer, although the employer himself may be in the wrong. Can this principle be made applicable to the State as an employer and the civil servants as the employees. Notionally, all civil servants hold office within the pleasure of the Crown and now of the President, but in actual reality there are myriads of authorities in the State who exercise that pleasure and instances will not be wanting in which private motive rather than the interest of the State is the motive for the exercise of that "pleasure" or to be exact "displea sure". In view of the different conditions and circumstances in which a private employee and a civil servant work, in my view the common law rule is not applicable to the latter's ‑ case. It may also be borne in mind that section 240 (3) was enacted by the Parliament at the time of inaugurating a new form of Government in the Indian sub‑continent. Previously the heads of the various Government departments were composed of civil servants them selves, but thereafter the popularly elected ministers were to take their places and there was an apprehension of their acting arbitrarily out of political motives. I am, therefore, inclined to put a broader interpretation on the scope of section 240 (3) so as to include in it not only the dismissal of a civil servant on charges of misconduct but 'also arbitrary termination of the appointment of a civil servant. A contrary view will lead to an anamoly that whereas a civil servant charged with misconduct has been ' given the right by the Constitution to defend himself against the action proposed to be taken in respect of him those who are not accused of any charge are not entitled even to know the reasons for their dismissal from service. 17. To sum up as the plaintiffs in all these appeals were permanent employees and they had not attained the age of superannuation, the orders terminating their appointments in accordance with a clause in their service agreements, were illegal because no notice to show cause against the action proposed to be taken in regard to them was given. I would accordingly dismiss all the appeals but in the circumstances would leave the parties to bear their own costs. RAFIQ, J.‑The point before the Full Bench is, whether the provisions of section 240 of the Constitution Act are nullified in respect of a permanent Government servant either by a rule or by a clause in the contract providing for termination of service with so much notice on either side. In this connection the three civil appeals in which we heard arguments are‑ (i) Regular First Appeal No. 14 of 1956 : The Federation of Pakistan through General Manager, N. W. R. v. Fayyaz Ahmad (ii) Regular First Appeal No. 121 of 1956. The Federation of Pakistan v. Mr. C. S. Khan. (iii) Regular Second Appeal No. 522 of 1956 : The Pakistan (formerly Federation of Pakistan) v. Ghulam Sarwar In the first case the respondent Fayyaz Ahmad was appointed as Apprentice Inspector of Works in the North Western Railway for a period of one year commencing from 12th October 1939 on his executing the agreement. He was then promoted and confirmed as an Inspector in January 1941, which post he held till 31st October 1953, when according to the agreement he was served with one month's notice and his services terminated. 2. In the second case, that of Mr. C. S. Khan, the gentle man was first appointed as a Railway Assistant Traffic Superintendent in 1921 and rose to the position of Chief Commercial Manager, North Western Railway, which post he held till May 1953, when he was transferred to East Bengal (now East Pakistan) as Chief Traffic Manager. Thereafter, he proceeded on 7 months' leave, but before the leave expired, he was informed on 19th August 1953, that his services were no longer required by the Governor‑General with effect from 1st September 1953, and according to the terms of his agreement he was given'6 months' pay in lieu of notice. 3. The respondent in the third case was a confirmed Foreman when he, on 24th August 1953, received a notice that his services were no longer required and were, therefore, being terminated with one month's pay in lieu of notice in terms of the service agreement. 4. The Courts below, following a Division Bench decision of this Court in Mrs. A. V. Issacs v. Federation of Pakistan (P L D 1954 Lah. 800) held that the provisions of section 240 of the Constitution Act had not been complied with and the three agreements, therefore, were ineffective. The learned Judges (Kaikaus and Akhlaque Husain, JJ.) in that case expressed the view that though as to temporary employees, termination of their service at the expiry of the period fixed for employment or by means of notice served in accordance with the terms of the agreement did not amount to dismissal or removal, with regard to permanent employees, however, the Government could neither by rule nor by a term in the contract of service make a provision so as to terminate their service by means of a notice without complying with section 240. In answering the present reference it has also to be considered whether this ruling lays down sound law. No authorities had been cited before the learned Judges and the decision its the case was based mainly on the interpretation of the different rules governing the service of the railway employee. Before us, however, both the sides relied on several English and Indian decisions, apat, from some cases of this Court and of the Supreme Court, decided since the decision in P L D 1954, Lah. 800 was given. 5. The position taken up on behalf of the State is that under the Constitution Act every servant of the Crown, whether temporary or permanent held his office during the pleasure of the Crown and, therefore, his services could be terminated at any time. Such is the position even at present, it was contended, except that it is now the pleasure of the President of the State: The learned Additional Advocate General, appearing on behalf of the State, after giving the facts of the three cases out of which the three appeals before us have arisen, began his arguments by quoting the English authorities in support of his contention. His first case was Shenton v. Smith ((1895) 72 L T R (N S) 130) in which it was held that 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 terms of their agreement as well understood throughout the public service, and that 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. This was, however, the case of a temporary servant, who was a doctor temporarily appointed to act as a Medical Officer during the absence of another doctor and was blamed for the death of a boy in the hospital. Before his services were terminated he was duly informed that his tenure of office would cease at the close of the year. 6. The next case cited by the learned Additional Advocate General was Dunn v. Queen ((1896) 1 Q B 116), which was of a civil servant employed for a term of three years and who was dismissed before the expiration of that period. He claimed damages, but it was held that the contracts for the service of the Crown were deter minable at the pleasure of the Crown and all public service under the Crown was for the public benefit. Further, that it was essential for the public good that the employment should be capable of being determined at the pleasure of the Crown. In this very case, however, it was also laid down that exception could be made in certain cases where it was deemed to be more for the public good that some restriction should be imposed on the power of the Crown to dismiss its servants. 7. In the third case cited, Roowell v. Thomas ((1944) K B 596) it was laid down that any contract providing for the employment of the Crown servant for a specific time or that the employment could only be terminated in certain ways was a clog upon the power of the Crown to dismiss at pleasure. It may, however; be stated that the appointment of the civil servant in this case was terminated after an enquiry of an accusation of grave misconduct had been made against him and the charge held proved. In practice, it was said, the rules of natural justice are followed and the civil servant is given some opportunity of presenting his case before he is dismissed. 8. In the fourth case, Denning v. Secretary of State for India in Council ((1920) 37 T L R 138) which followed Dunn v. Queen, it was again held that a servant of the Crown against whom no misconduct was alleged was subject to dismissal without notice, even if the form of agreement under which he was engaged implied that except in case of misconduct the engagement could be terminated only by notice. The services of the Crown servant in this case, however, were terminated on account of difficulties with relation to his health. 9. These four English cases cited by the learned Additional Advocate‑General and discussed above, no doubt, lay down that servants of the Crown hold their offices during the pleasure of the Crown (a) not by virtue of special prerogative of the Crown, but because such are terms of their engagement, as well under stood through the public service ; (b) for the public benefit and for the public good; (c) even if the form of agreement under which they are engaged implies that except in case of mis conduct the engagements could be terminated only by notice ; and (d) not for specific time or on the conditions that the employment could only be terminated in certain says. It is, however, significant that all the four cases were of the temporary Crown servants, whereas in the present reference we are dealing with the cases of permanent Government employees. Further, in every one of the four cases cited there was a ground and every justification for terminating the services of the Crown servant concerned arid the pleasure of the Crown operated not in an arbitrary or capricious manner. Two other English cases, namely, Reilly v. King ((1934) A C 176), and Robertson v. Minister of Pensions ((1949) 1 K B 2273), quoted on behalf of the respondents, as a matter of fact, recognize that the Crown's pleasure is not so unlimited. In the first case it was held that if the terms of an appointment prescribe its period and provide expressly that it may be terminated for cause, a power to dismiss at pleasure. cannot be implied. The Crown servant, however, lost his office during its specified currency not for the reason of Crown's pleasure but by reason of the repeal of the statutory provisions which created it. In the second case also it was held (i) that as between subjects an assurance by the War Office that the disability of the Crown servant concerned had been accepted as attributable to military service it would be enforceable because it was intended to be binding, intended to be acted upon and was in fact acted upon ; (ii) that the assurance was binding on the Crown because no term could be implied that the Crown was at liberty to revoke it. 10. In a recent English case Torrell v. Secretary of State ((1953) 2 A E R 490), it was laid down that though the determination of the employment lies at the pleasure of the Crown, it does not necessarily follow that all the incidents of the service, other than those which might operate as a clog on the pleasure of the Crown to terminate the employment at any time are also at the pleasure of the Crown and that the Civil servant can have no legal rights at all in any matter connected with his service. 11. However, the English authorities undisputedly proceed on the general English rule that all service under the Crown is held at the pleasure of the Crown, and such was undoubtedly the position in the undivided India prior to the Government of India Act, 1919. There was no statutory provision controlling the pleasure of the Crown in the matter of termination of the services of a civil servant and the English Law doctrine was applied in all respects. Section 96‑B of that Act then for the first time laid down some statutory provisions relating to this matter. Though every person in the civil service of the Crown in India was to continue to hold office during His Majesty's pleasure, he was not to be dismissed by any authority subordinate to that by which he was appointed. When the Government of India Act, 1935, came into force on the 1st April 1937, the provisions made in it were more elaborate and explicit. Instead of leaving the matter to rules, subsection (3) of section 240, for the first time, laid down a procedural statutory safeguard in the interest of the civil servant and to that extent fettered the absolute discretion of the Crown to dismiss a civil servant at pleasure, which was in subsection (1). The breach of subsection (2) or (3) made the dismissal null and void. The word "dismissal" according to section 277 of the Act, was to include "removal". Section 241 of the Act dealt with the recruitment of civil servants and their conditions, of service. For convenience sake sections 240 and 241 be reproduced here :‑ "240. Tenure of office of persons employed in civil capacities in India.‑(I) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure. (2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. (3) No such 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. Provided that this subsection shall not apply‑ (a) Where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge, or (b) where an authority empowered to dismiss a person or reduce him in rank is satisfied that for some reason, to be recorded1by that authority in writing, it is not reasonably practi cable to give to that person an opportunity of showing cause. (4) Notwithstanding that a person holding a civil post under the Crown in India holds office during His Majesty's pleasure, any contract under which a person, not being a member of a civil service of the Crown in India, is appointed under this Act to hold such a post may, if the Governor‑General, or, as the case may be, the Governor, deems it necessary in order to secure the services of a person having special qualification, provide for the payment to hint of compensation if before !be expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, requires to vacate that post." "241. Recruitment and conditions of service‑(1) Except as expressly provided by this Act, appointments to the civil services of, and civil posts under, the Crown in India, shall, after the commencement of Part III of this Act, be made- (a) in the case of services of the Federation, and posts in connection with the affairs of the Federation, by the Governor General or such person as he may direct. (b) in the case of services of a Province, and posts in connec tion with the affairs of a Province, by the Governor or such person as he array direct. (2) Except as expressly provided by this Act, the condition of services of persons serving His Majesty in a civil capacity in India shall, subject to, the provisions of this section, be such as may be prescribed‑ (a) in the case of persons serving in connection with the affairs of the Federation, by rules made by the Governor General or some person or persons authorised by the Governor General to make rules for the purpose ; (b) in the case of persons serving in connection with the affairs of a Province by rules made by the Governor of the Province or by some person or persons authorised by the Governor to make rules for the purpose ; 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. (3) the said rules shall be so framed as to secure‑ (a) that, in the case of a person who before the commence ment of Part III of this Act was serving His Majesty in a civil capacity in India, no order which alters or interprets to his disadvantage any rule by which his condition of service are regulated shall be made except by an authority which would have been competent to make such an order on the eighth day of March, nineteen hundred and twenty‑six, or by some person, empowered by the Secretary of State to give directions in that respect; (b) that every such person as aforesaid shall have the same rights of appeal to the same authorities, from any order which‑ (1) punishes or formally censures him, or (ii) alters or interprets to his disadvantage any rule by which his conditions of service are regulated ; or (iii) terminates his appointment otherwise than upon his reaching the age fixed for superannuation, as he would have had immediately before the commencement of Part III of this Act, or such similar rights of appeal to such corresponding authorities as may be directed by the Secretary of State or by some person empowered by the Secretary of State to give directions to that respect; (c) that every other person serving His Majesty in a civil capacity in India shall have at least one appeal against any such order as aforesaid, not being an order of the Governor‑General or a Governor ; (4) Notwithstanding anything in this section, but subject to any other provision of this Act, Acts of the appropriate Legis lature in India may regulate the conditions of service of persons serving His Majesty in a civil capacity in India, and any rules made under this section shall have effect subject to the provi sions of any such Act ; Provided that nothing in any such Act shall have effect so as to deprive any person of any rights required to be given to him by the provisions of the last preceding subsection. (5). No rules made under this section and no Act of any Legislature shall be construed to limit or abridge the power of the Governor‑General or a Governor to deal with the case of any person serving His Majesty in a civil capacity in India in such manner as may appear to him to be just and equitable. Provided that, where any such rule or Act is applicable to the case of any person, the case shall not be dealt within any manner less favourable to him than that provided by that rule or Act." 12. Since the Act came into force, actions taken by the Government from time to time against its employees, whether they were dismissed or reduced in rank, have given rise to cases in our Courts of undivided India and section 240 has been the subject of interpretation. The leading case on the subject is of Mr. L M. Lall of the Indian Civil Service, who in the year 1940, after there had been a departmental enquiry against him on charges of misconduct, was removed from service by the Secretary of State for India acting on behalf of His Majesty "in exercise of the rights of the Crown to dismiss its servants at pleasure." The question arose whether there was any legal limitation or restriction enforceable by action on the power of the Crown to dismiss its servants and the answer involved the determination of true con struction of section 240. The Federal Court (A I R 1945, F C 47) held that the opening words "except as expressly provided by this Act" in section 240 (1) include a limitation or qualification on what follows in section 240 (1) by provisions found later on in the same section. When the case went to the Privy Council (A I R 1948 1948 P C 121) their Lordships held that the provisions in subsection (1) of section 240 were qualified by subsections (2) and (3), which were mandatory, though at the same time it was also held that the pay for service under the Crown was a matter of bounty and the Crown could not be made liable to any damages in tort. This Court, as recently as 1957, in a case Muhammad Ayub v. Government of West Pakistan (P L D 1957 Lah. 487) decided by the learned Chief Justice and Akhlaque Husain, J., held that under the Pakistan Constitution (Article 181 which is on the same line as section 240) the pleasure of either the President or of the Governor is not unlimited and unfettered. In an earlier case Raja Muhammad Afzal Khan v. Federation of Pakistan (P L D 1957 Lah. 17) M. R. Kayani and Muhammad Sharif, JJ also expressed the view that clause (2) of Article 181 of the Constitution of Pakistan contains a condition of an absolute character (i.e. in issuing show cause notice) which must be satisfied before a civil servant can be dismissed or removed from service or reduced in rank. It therefore, must be held that the prerogative right of the Crown to dismiss its servants at will having been given statutory form in subsection (1) of section 240, it could only be exercised subject T to the limitation imposed by the remaining subsections of that section. The contention of the learned Additional Advocate General that under the Constitution Act every servant of the Crown held his office during the pleasure of the Crown must, therefore, be rejected. 13. This brings us to the real question, viz., whether the provisions of section 240 of the Constitution Act are nullified in respect of a permanent Government servant either by a rule or by a clause in the contract providing for termination of service with notice on either side. As already observed, while section 240 of the Constitution Act provided procedural statutory safeguard in the interest of the civil servant to that extent, section 241 dealt with the recruitment of civil servants and their conditions of service. 1t was under subsection (2) of this latter section that the rules contained in the Railway Establishment Code were made by the Governor‑General to be applicable to Railway Employees. Similarly, for example, there are the Civil Services Rules (Punjab) which apply to members of Provincial and Subordinate Services, etc., and issued by the Governor under section 241. There are then Civil Services (Classification, Control and Appeal) Rules made by the Secretary of State in Council in 1930, under section 96‑B of the Government of India Act, 1919, and applicable to civil servants. All these different rules govern the conditions of service of the various Government servants. This would nor mally amount to this that a Government servant accepting employ ment agrees to be governed by these rules which, therefore, become part of the contract which governs his employment. In other words, the rules are terms mutually agreed upon between the parties. In principle, therefore, there can be no distinction between the termination of a man's services in accordance with the conditions of his service, and the termination of the services of a person under the terms of contract governing him. In the case of temporary Government servants there is no dispute that if according to the terms of agreement the Government be entitled to terminate the tenure of the service of any employee after giving notice stipulated upon. So may the employee relinquish his employment upon giving a similar notice. With regard to permanent Government servants also, I see no reason why there should be any difference. Section 240 of the Constitution Act itself makes no distinction between temporary and permanent Government servants and, in my view, when a Government servant, whether he be temporary or permanent, enters into any agreement he should be bound by the terms of that agreement just as much as the Government, unless the agreement or any of its clauses is, as is the question before us, in violation of section 240. For example, a clause in the contract (or a rule) to the effect that a Government servant, temporary or permanent, can be dismissed or removed with out show cause notice will be null and void. Difficulty, however, arises when it has to be considered whether the termination of services in some cases amounts to dismissal or removal. Kayani, J. sitting with Muhammad Sharif, J. in Raja Muhammad Afzal's case held that if the employer's notice to a temporary civil servant was not in good faith and a clause in the contract was being used as a pretext for getting rid of the civil servant who made himself undesirable for some reason, then the object was to remove him from service. In another case, Punjab Province v. Athar Ali (P L D 1956 Lah. 886) Ortcheson, J. held that the protection afforded to Government servants by sections 240 and 241 of the Constitution Act could not be set at naught by substituting for the term "dismissal" or "removal" the neutral phrase "termination of service". This, however, was also the case of a temporary Government servant whose services were terminated without assigning any reason. The learned Judges, in the two cases, relied on the judgment of the Supreme Court case, however, there was a reason given for dispensing with the services of the Government servants concerned, who were temporary Police Officers. The reason mentioned in the notice terminating their services was that their work had been found unsatisfactory and the learned Judges by majority held that the termination had clearly brought about an effective removal and the order supported by a statement of the reason for the determination of service in each case, viz., that the work of the Government servants had been found unsatis factory. I do not think that it was intended to be laid down that if the services of a Government servant are terminated even by a notice simpliciter, in accordance with the terms of the contract or according to the conditions of service, the termination would amount to dismissal or removal. The case, however, would be different when there is termination of services with a reason attaching blame to a Government servant, as was in the case before the Supreme Court. In my view, therefore, if the termination is by way of penalty it would amount to dismissal or removal, otherwise not and in which case if the Government gains by not going through the formality of holding an enquiry before getting rid of a Government servant, it also at the same time allows the Government servant to leave service without any blame being mentioned in the record and thus enabling him to seek employment honourably some where else. Another reason why there should be no objection to terminate the services of the Government servant according to the conditions of his service or in the terms of his contract is, that he also on his part can give a notice for leaving service as much as Government has its choice of terminating his services. What motivates for action being taken is not at all relevant. After all there must always be some reason for terminating the services. In India the position now is settled and all controversy as to the meaning of the words "dismissal" and "removal" has been laid at rest by the Supreme Court of that country. In Satish Chandra Anand v. Union of India (A I R 1953 S C 250) the civil servant who had been engaged on the basis of a special contract for a certain term, was, on the expiry of the term, re‑appointed by a further contract on temporary basis. In accordance with the Government Rules, which form part of the contract, he was discharged from service after notice. It was held that it was neither a case of dismissal nor of removal. In another case Shyam Lal v. State of Uttar Pradesh (A I R 1956 S C 369) the public servant had been making systematic and gross over‑payments to benefit the contractor concerned and had himself spent large amount of public money for has personal convenience. His explanation was taken and the President of the State after considering the case decided to retire him forthwith. It was held that the order could not be challenged on the ground that full opportunity of showing cause against the action proposed to be taken in regard to him had not been afforded, as a compulsory retirement did not amount to dismissal or removal and the provisions of the Constitution or of the rules were not attracted. To my mind, the most important document to see as to whether the Administra tion has proceeded by way of punishment or otherwise, is the order terminating the service. Thus where the order terminating the services of a Government servant does not show that he has been found guilty of any charge and on the contrary the order clearly and simply states that his services are no longer required by the Administration and he is being given the requisite notice the termination cannot be said to be by way of punishment. The termination remains a termination under the terms of contract and that Government is entitled under the contract of service to terminate the services of an employee after certain notice without the assignment of any reason in the termination. Termination of services in this way, therefore, does not attract the provisions of section 240 and a clause in the contract to the effect that services can be terminated with certain period of notice would not militate against the provisions of this section. It may also be pointed out that a Government servant, even though his services have been terminated according to the terms of his contract or under a rules, can still, if he feels aggrieved, exercise the right of appeal guaranteed to him under section 241 of the Constitution Act. Rule 49 of the Civil Services (Classifi cation, Control and Appeal) Rules, and so also rule 14.10 of Civil Services Rules (Punjab), be also noticed. According to the Explanation (c) to this rule, the discharge of a person engaged under a contract, in accordance with the terms of his contract, does not amount to removal or dismissal. 14. In my view, therefore, the provisions of section 240 of the Constitution Act, as explained above, are not nullified in respect of a Government servant; whether temporary or perma nent, either by a rule or clause in the contract providing for termination of services with a certain period of notice on either side, and the cases should be decided accordingly. Per Curian.‑In accordance with the majority decision, Regular First Appeals 14 and 121 and R. S. A. 522 of 1956, are allowed and the respondent's suits dismissed. Parties will bear their own costs throughout. At the oral request of respondent's counsel we grant certificates that the cases involving as they do the question of the correct interpretation of section 240 (3) of the Government of India Act, 1935, are fit cases for appeal to the Supreme Court. R. F. A. 37 of 1954, will be left over for disposal by a D. B. of this Court. A. H. Appeal allowed.