Hiranmoy Bhattacherjee and Another vs State of Assam and Another

Sarjoo Prosad, C.J.—These Rules arise out of applications under Article 226 of the Constitution. They came up for hearing before a Division Bench of this Court presided over by my learned colleagues, Rain Labhaya and Delta JJ. That Bench was of opinion that these cases involved questions of general importance and it was, therefore, desirable that they should be heard by a larger Bench of this Court. In pursuance of that recommendation contained in their order, dated 23-6-53, this Full Bench was constituted to hear these Rules.

The facts involved in the two cases are substantially common and they also involve common questions of law. They can be, therefore, conveniently disposed of together by this judgment. The material facts have been set out in the aforesaid order of reference, but it would be just as well to recapitulate the relevant details there.

Civil Revn. No. 58 of 1951. Briefly stated, the Petitioner''s case is that immediately preceding the partition of India he was a Gazetted Officer in Class II of the Assam Educational. Service and had been holding the post of a Lecturer in Bengali in Murarichand College, Sylhet. He had a starting salary of Rs. 195/-per mensem beginning from 19-2-47 with annual increment falling due on the 19th of February of each subsequent year and also with prospect of promotion to Class I.

The partition, as is well known, came into effect on the 15-8-1947, splitting up India into two Dominions known respectively as India and Pakistan. In July of that year, the Petitioner (along with other Government servants of Gazetted rank) received a confidential letter No. C. 175/47/20, dated, Shillong, the 25-6-1947 (Home Department), over the signature of the then Chief Secretary to the Government of Assam, together with a Questionnaire to be filled in by him conveying his option to serve in either of the two Dominions after partition. These papers which are popularly known as ''Option Papers'' are marked as Annexure ''A'' to the petition and appear to have been circulated by the State Government according to the policy and direction of the Government of India.

The papers contained an assurance guaranteeing the Petitioner the same terms and conditions, of service as existed before the date of partition and creation of the two Dominions, and his provisional choice of service was not in any way to prejudice his seniority and conditions of service.

The Petitioner exercised his option in favour of the Dominion of India and submitted his answers to the Questionnaire accordingly. As a result of a referendum held on 6th and 7th of July 1947, a greater, part of the District of Sylhet went to Pakistan with effect from 15-8-1947. By that date the Government of Assam had withdrawn from the District of Sylhet all their employees who were natives of Assam, but many of those employees at Sylhet who were natives of that District or of Bengal, like the Petitioner, were left behind in spite of their exercise of the option for service in favour of India.

It is suggested in the application that these employees were deliberately left behind and even attempts were made to transfer from other parts of Assam as many Bengali employees as possible to Sylhet.

On 1-9-1947, the employees of the Government of Assam left behind at Murarichand College, Sylhet, including the Petitioner, were served with notices by the Government , of East Bengal in Pakistan to hand over charge and the Petitioner was thus relieved of his duties with effect from that date. They were further advised to report themselves to the Government of Assam immediately. On the same date, the Petitioner, therefore, applied to the Chief Secretary to the State Government for a direction as to when and where he should report himself for duty. While yet the Petitioner was awaiting a reply to his communication from the Government of Assam, the District Magistrate of Sylhet served a notice on him to vacate his quarters within three days.

The Petitioner was, therefore, compelled to leave that place with his family in the 3rd week of September 1947 and come over to the Indian Union with the intention of permanently settling here. Since then he has been residing in the Indian Union and was thus a citizen of India.

He moved the Government of Assam from time to time for his posting, but the Government kept him on ex-gratia leave on half average pay from 1-9-1947 to 31-3-1948, in spite of his protests against any leave being forced upon him. On the 21st of April of that year, the Petitioner received a letter from the office of the Director of Public Instruction, Assam, intimating that his services were dispensed with on and from 1-4-1948. The letter bears Memo. No. 14423A/ 2E-1/23/47, dated 21-4-1948, and is Annexure ''B'' to the petition. It purports to bear the signature of the Assistant Director of Public Instruction, Assam.

The reason assigned in that letter for dispensing with the services of the Petitioner is said to be "due to the transfer of a major portion of Sylhet with its institutions to East Bengal." The letter gave three months'' notice of discharge with effect from 1-1-1948, even though the intimation itself came in April, 1948, and was actually received by the Petitioner in the first week of May, 1948.

The Petitioner represented against the order dispensing with his services and prayed for his absorption in service, but he was informed by the Assistant Director of Public Instruction, Assam, by his Memo. No. 27125A/1P/48/48, dated 31-8-48, which is Annexure ''C to the petition, that "Government had not been able to procure any Pakistan vacancies suitable for his appointment." The Petitioner was, therefore, directed to submit his application for pension or gratuity.

He, under protest, submitted his pension papers on 23-3-1949, as demanded by the Government of Assam, reserving full rights to take necessary legal steps for recovery of damages on the premature termination of his services. On receipt of those papers, the Government, under Memo No. F.M.P. 3/50/17, dated 3-4-50, sanctioned for the Petitioner a compensation pension of Rs. 30/9/- per month with effect from 1-4-48, but the Petitioner has not yet accepted that compensation.

The Petitioner submits that the order dispensing with his services is altogether illegal and has caused serious loss and damage to him. The petition then goes on to recite various facts which, according to the Petitioner, establish mala fides of the State Government in dispensing with his services and in seeking to discriminate between one set of employees and another on the ground that the Petitioner and some other employees were of Bengali origin. The Petitioner states that he was appointed to the Assam Educational Service under the Government of Assam by the Secretary to the Government in the Department of Education, as would appear from the Gazette Notification, but the order of his dismissal from service, as contained in the above Memo, of 21-4-48, was issued by the Assistant Director of Public Instruction, which officer was subordinate to the Secretary and had no power to dismiss or discharge the Petitioner or terminate his services.

Any delegation of power to dismiss an officer was void and illegal and the order of Government, No. P.G. 45/48/1/, dated 1-4-48, which is Annexure BB to the Supplementary Affidavit filed by the Petitioner, it is claimed, cannot be regarded as a valid order of dismissal or discharge inasmuch as the order does not mention any person or persons who are to be served with notice of dismissal or discharge, and it does not fulfil the requirements of Section 240 of the Government of India Act, 1935, and the rules of services of the Assam Government.

The above orders were further made without giving any reasonable opportunity at all of showing cause against the action proposed to be taken. It is also stated that under the Service Rules, the Petitioner had lien on the Cadre of his service, and since the illegal order dispensing with his services, the Respondent Government had filled up many vacancies in the cadre with fresh recruits in utter disregard of the Petitioner''s right to be reinstated in the service.

On behalf of the State of Assam and the Director of Public Instruction, Assam, who are Respondents to the application, a counter-affidavit has been filed, in which it is stated that the Government of Assam merely circulated the "Option papers" as directed by the Government of India, without giving any guarantee to the Petitioner and the other officers opting for the ''Rest of India'' to retain or absorb them in the service cadres; and in any case, the application should fail, in the absence of the Government of India, which should have been made a necessary party thereto.

The total strength of the Assam Educational Service, Class I (Professors) and Class II (Lecturers) was 94 just before the partition of India. But, with the transfer of Sylhet to Pakistan, the Murarichand College, at Sylhet also passed out of the jurisdiction and control of the Government of Assam. This naturally necessitated a considerable proportionate reduction in the strength of the Service which had to be limited to 50 only. The Petitioner, being a Lecturer in Class II Service, teaching Bengali in the Murarichand College, became surplus to the requirement of divided Assam and had, therefore, to be retrenched and pensioned off, according to the procedure laid down in the Pension Manual.

It is also stated in the counter-affidavit that Assam, during the pre-partition period, consisted, of two distinct regions, both linguistically and socially different viz.: Assam Valley and Surma Valley, the latter comprising Sylhet, the home district of the Petitioner. Government appointments prior to the Constitution of India were made not only on communal basis but also on Valley basis. Accordingly the Surma Valley Caste Hindoos, to Which the Petitioner belongs, were entitled to 9.32 per cent of the posts in each category of Government Services. Working on this proportion, the Petitioner''s community of Sylhet could claim only 9 posts, at the most, in the Assam Educational Service which comprised of 94 teachers. But their number was then 23, far in excess of the due proportion, and Government admit that this was an additional reason for selecting the Petitioner for retrenchment.

Government, therefore, claimed that they were not bound to retain or absorb the Petitioner, but out of sympathetic considerations, they passed orders on 1-12-47 (vide No. P.G. 94/47, dated 8-12-47) to the effect that the officers who could not be absorbed, should be relieved on pension or gratuity, as the case may be. This order applied to all the officers, including the Petitioner,, and in pursuance of the order, the Assistant Director of Public Instruction, Assam, conveyed to the Petitioner the orders of Government dispensing with his services.

The matter was one of retrenchment, and not of disciplinary action and, therefore, no question of notice to show cause arose. Nevertheless Government gave due consideration to the representations made by the Petitioner and the points raised by him. Government further stated that the matter was finally decided in 1948 and closed'' by Government order discharging the Petitioner. This was long before the Constitution of India came into force and, therefore, the Petitioner had no right to apply to this Court for a writ under Article 226 of the Constitution. Government also denied the allegations of mala fide or discrimination made against them and stated that; the transfers or re-transfers were made for administrative necessity.

Civil Revision No. 59 of 1951. The facts stated in this application are substantially similar except that the Petitioner was confirmed as a Lecturer in Bengali in class II of the Assam Educational Service under the Government of Assam on and from 17-7-45 and was at the time of partition, a Lecturer in Bengali in the Murarichand College, Sylhet, drawing a substantive salary of Rs. 210/- per mensem. This Petitioner was similarly served with a notice of discharge with effect from 1st January 1948 and was directed to apply for pension or gratuity. He also made repeated representations to Government, but without any effect. He, however, does not appear to have submitted his pension papers, as demanded by Government, and in his case, therefore, Government had not fixed any compensatory pension at all. Government reply in this case is in the same terms as the previous one.

The Petitioners have, therefore, prayed for a writ or appropriate direction commanding the Respondents to cancel or recall their illegal orders dispensing with the services of the Petitioners, and for holding that the Petitioners are still in the service of the Government of Assam in the Cadre or Cadres in which they were employed, with all the emoluments and privileges incidental to their offices.

The important contetions which were raised on behalf of the Petitioners have been summarised in the order of reference as follows:

That the Petitioner''s order of discharge was finalised in April 1950 after the Constitution of India had come into force. The Petitioner, therefore, has right to invoke the jurisdiction of this Court under Article 226 of the Constitution.

That even if the order of discharge, dated 21-4-1948, is taken as operating as a final order, the Petitioner can claim relief under Article 226 as the order was not passed by any competent authority and, as such, constituted a continuing wrong.

That the order of discharge amounted to a dismissal or removal from service and notices as required by Section 246 (it ought to be Section 240?), Government of India Act, 1935 were not served on him.

That the order of discharge was not in conformity with the conditions of service and was unauthorised.

These points, though broadly formulated, involve various other subsidiary considerations and will have to be answered accordingly.

The question, whether the removal of these Petitioners from service or dispensing with their services had become concluded by the order of Government passed in April 1948 long before the Constitution came into being, and, therefore, the Petitioners had no right to apply under Article 226 of the Constitution, is one which goes to the very root of the matter.

On behalf of the Government, it has been contended that Article 226 cannot be given retrospective operation even assuming that the orders complained of could be questioned on the grounds alleged by the Petitioners and that, therefore, the Petitioners could not invoke a remedy of this kind when It was not available to them at the time when these orders were passed. Mr. Medhi has justifiably sought to caution us against any question of hardship being allowed to influence our judgment. It is well known that hard cases make bad law, and the argument of hardship has been said to be always a dangerous one to listen to, specially where it concerns the interpretation of a statute, and much more so of the Constitution itself. It is the Court''s duty to see whether the law in its natural construction is not inconsistent or unreasonable or unjust, and that construction should on no account be departed from merely because it may operate with hardship or injustice in a particular case.

The principle is also well-established that no statute should be

construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication.

(Maxwell, on Interpretation of Statutes).

Wright J., observed in -- ''In re Athlumney, Ex parte Wilson'', (1898) 2 QB 547 at pp. 551, 552. (A):

"No rule of construction is more firmly established than this: that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only".

This rule is also subject to the rider that in all; cases regard, must be had to the predominant purpose of the legislation which is to be construed.

But the presumption against a retrospective construction has no application to enactments or provisions in an enactment which affect only the procedure. In all such cases, the general principle is that they are retrospective unless there is some good reason to hold against that view. Therefore, where the Legislature gives a new remedy for enforcing rights, the remedy would extend to right which had accrued before the new remedy had been provided.

There are numerous such instances in the English common law. For instance,

When the Legislature gave a new remedy by the Admiralty Court Acts of 1840 and 1861 for enforcing rights in the Admiralty, those Acts were held to extend to rights which had accrued before the new remedy had been provided.

(see Maxwell, p. 233).

In the present case, it has been urged on behalf of the Petitioners that Article 226 of the Constitution has provided that additional remedy to the Petitioners, under which they could move this Court against the illegal orders of Government, even though the orders were passed before the Constitution came into being, provided the remedies had not been altogether barred under the law as it then stood, and the matter thereby concluded finally by the orders of Government. In this case, the Petitioners'' right to sue in'' the ordinary course of law for a declaration that the Petitioners still continued to be in service, in spite of the illegal orders of the State Government questioned in these applications, had not been extinguished. The orders could still be challenged in a regular suit in a Court of competent jurisdiction. In a suit of this character, Article 120, Limitation Act, which provides for six years'' limitation, would apply. That being so, the said orders of Government could not be deemed to have become final and conclusive so as to deprive the Petitioners of the remedy available to them under the ordinary law. In the meantime, the Constitution has come into force, and by virtue of Article 226 of the Constitution, a speedier and more convenient remedy has become available to the Petitioners; there is no reason why they should be deprived of this remedy provided the justice of the case calls for an application thereof.

I find myself in respectful agreement with the dictum of Chakravartti C.J., in a very recent decision in -- Hindustan Motors Ltd. Vs. Union of India (UOI) and Another, of the Calcutta High Court, wherein the learned Chief Justice, with reference to Article 226 of the Constitution, observed thus:

The Article has created no substantive right, but only provided a new form of remedy through the High Courts which might well have been done by an Act of the appropriate Legislature or Legislatures. It follows that where the right asserted or the liability denied is one under the ordinary laws of the country, and not one arising out of the Constitution, and an assertion or denial has taken place after the Constitution has come into force, it cannot be said that the application of Article 226 is excluded by the fact that such right or liability eriginated before the commencement of the Constitution. If there is a present threat, there is no reason why the present remedy under Article 226 should not be available, and where the threat is based on a right, claimed to have arisen under one of the ordinary laws of the country at some date prior to the Constitution, I can see no reason why Article 226 cannot reach out to that date to see if the right is in accordance with the law, said to warrant it.

The decision was with reference to a case where the Customs authorities had demanded from the Appellant, under notice dated 23-12-1949, a certain sum of money payable by way of Customs duty. The Customs authorities stated that the extra demands were being made, not because there had been a wrong assessment, but because the concession with regard to foreign exchange -contracts had been disallowed by the Government of India and, therefore, the post-devaluation value had to be taken for all the consignments. The Appellant challenged the demand on various grounds, including the violation of the fundamental rules of judicial procedure or the principles of natural justice, by an application under Article 226 of the Constitution.

A learned Judge of the Court who heard the Rule sitting singly, held that the demands were formulated and made before the Constitution had come into force and since the Constitution, including Article 226, was not retrospective in operation, the Applicant could not avail himself of Article 226 for the cancellation of the Demand Notices.

In appeal, this view of Article 226 was not entertained by the Court. That the Constitution is not retrospective in operation, only means that rights created or principles introduced for the first time by the Constitution itself could not be claimed in respect of facts or circumstances existing prior to the Constitution, and on the basis of which the rights and liabilities of the parties had to be adjudged, but that will have no application to a procedural provision made by the Constitution.

This view of Article 226 would at once explain the decision of the Supreme Court in -- Keshavan Madhava Menon Vs. The State of Bombay, on which much reliance has been placed by Mr. Medhi. The decision there rested on the interpretation and application of Article 13(1) of the Constitution which falls under Part III dealing with Fundamental Rights. In construing that Article, the majority of the Judges held that every statute was prima facie prospective unless it was expressly or by necessary implication made to have retrospective operation, and there was no reason why that rule of interpretation should not be applied for the purpose of interpreting the Constitution also.

Their Lordships pointed out that under Article 13(1), all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void, and also proceeded further to observe as follows:

As the fundamental rights became operative only on and from the date of the Constitution, the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. It must follow therefore, that Article 13(1) can have no retrospective effect but is wholly prospective in its operation. Therefore, the voidness of the existing laws, according to that view, was limited to the future exercise of the fundamental rights, and. Article 13(1) could not be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the Statute Book, for, to do so would be to give that Article retrospective effect, which it did not possess.

This is, therefore, not the same thing as saying that the remedy under Article 226 of the Constitution is not available to the Petitioner against an illegal act or order which happened before the Constitution. Here the Petitioners do not claim that any substantive right created for the first time by the Constitution has been violated. What they do claim is that the order challenged in these petitions could not have been passed even under the existing laws and rules governing the conditions of service of the Petitioners. The laws and rules governing the conditions of service as they existed prior to the Constitution are not questioned by the Petitioners on any such ground of inconsistency with the fundamental rights guaranteed to them under the Constitution.

The decision in ''Keshavan Madhava Menon''s case (C)'' (supra) has been explained and followed in other subsequent decisions of the same Court. In -- Lachmandas Kewalram Ahuja and Another Vs. The State of Bombay, S.R. Das J., who delivered the majority judgment stated that the observations made in that case related to the substantive rights acquired or liabilities incurred under a legislation before the Constitution came into force. Under what procedure the rights and liabilities would be enforced, did not come up for consideration in that case.

His Lordship formulated the principle that-- ''if in the absence of any special provision to the contrary, no person has a vested right in procedure, it must follow as a corollary that nobody has a vested liability in matters of procedure in the absence of any special provision to the contrary. If this is the position when the law'' of procedure is altered by statute why should the position be different when the Act prescribing the discriminatory procedure becomes void by reason of its repugnancy to the equal protection clause of the Constitution? Although the substantive rights and liabilities acquired or accrued before the date of the Constitution remain enforceable, as held in ''Keshavan Madhava Menon''s case (C)'' nobody can claim, after that date, that those rights or liabilities must be enforced under that particular procedure although it has, since that date come into conflict with the fundamental right of equal protection of laws guaranteed by Article 14.

To the same effect is another decision of that Court in -- ''Qasim Razvi v. State of Hyderabad'' AIR 1953 SC 158(E), where again it was pointed out with reference to ''Keshavan Madhava Menon''s case (C)'' that the effect of Article 13(1) of the Constitution was not to obliterate the entire operation of the inconsistent laws or to wipe them out altogether from the statute book, for, to do so would be to give them retrospective operation. Such laws must be held to be valid for all past transactions and for enforcing rights and liabilities accrued before the advent of the Constitution.

These cases, therefore, by no means support the contention that the additional and speedier remedy provided under Article 226 of the Constitution could not be invoked in protection of rights which were affected illegally even under the existing rules or regulations prior to the Constitution so long as any substantive right created by the Constitution itself was not called in aid to support that remedy.

In this case, as I have said, the Petitioners merely challenged the orders passed by Government terminating their services as unwarranted and illegal even under the then existing rules and conditions governing their service. The decision of this Court in -- ''Amrit Lal Das v. Govt. of Assam'' AIR 1954 Gau 152(F), is justified on its own facts, and can be easily distinguished on the grounds which I have stated above. In that case also it was claimed that the order in question which was passed long prior to the Constitution, infringed the fundamental rights of the Petitioner. The guarantee of fundamental rights did not come into being until with the Constitution itself and, therefore, could not affect any orders which had been passed earlier. I need not discuss, any other cases on the point. Suffice it to say that if any opinion in any decision has been expressed to the contrary, I am not prepared to accept the same.

Mr. Ghose has argued in the alternative that the orders complained against being void and illegal even under the existing rules, the Petitioners should be deemed to have continued to be members of the service to which they belonged. The wrongful act committed by the Respondents in not employing them and in compelling them to retire on pension or gratuity, was a sort of a continuing wrong for which it was open to them to seek the protection of this Court under the remedy provided by the Constitution.

He relies in support upon a decision in -- Harendra Nath Sharma v. State of Madhya Bharat AIR 1950 Mad 46 (G) where it was held that

in the absence of an express provision to the contrary, an ultra vires order may be a cause of action at any time after the making of it, and no rights can be acquired under it, for, it is void ab initio.

In that case, it is significant to notice that the order referred to was an order passed on 4-7-1949, which was prior to the coming into operation of the Constitution. High prerogative writs are issued for the protection of the rights of individuals and to check excess or abuse of powers, and where the foundation of the writ prayed for is a complaint against an ultra vires order, it is difficult to say that the cause of action did not survive when the Constitution came into force. The mischievous effect of the illegal order gives a sort of a continuing cause of action. There appears to be, therefore, substance in this alternative contention also, though for the present I shall not make any final commitments thereon.

Mr. Ghose has also urged that at least in the case of one of the Petitioners, the pension orders were finalised on 3-4-50 when they fixed the amount of compensation pension payable. This was after the Constitution had taken effect and in his case, therefore, no such question of retrospective operation of Article 226 arose. The contention does not appear to be sound inasmuch as the orders terminating the service and fixing the pension may be held to be distinct orders. I do not, however, consider it necessary to give any final decision on the point in view of what I have already held, namely, that the Petitioners are entitled to move this Court under Article 226 of the Constitution.

Mr. Medhi has then contended that the Government of India should have been a necessary party to the application, and in circulating the "option papers", the State Government did not offer any guarantees to the Petitioners for their absorption in the service cadre.

It is somewhat astounding -- and I say so with great respect -- that the State Government should have taken refuge in an argument of this character, of which no serious notice can be taken. Letter No. C. 175/47/20, dated 25/6/47, was, sent by the then Chief Secretary to the State of Assam. It was sent to the officers of the State evidently with the intention of obtaining their replies to the Questionnaire accompanying it. The letter did not merely forward the Questionnaire but also repeated the assurance that the representatives of the two future Governments'' consequent on the partition of India guaranteed their existing terms and conditions of service. This can only be read as meaning that the Provincial Governments also had approved of the decision of the Special Committee of the Partition Office, Government of India, New Delhi, and had agreed to obtain the opinions of their employees with respect to their option of service in either of the two Dominions, giving them necessary guarantees as to the existing terms and conditions'' of their service.

The Petitioners were employees of the Provincial Government, and being members of the Provincial Service Cadre, were not concerned with the Government of India as such. The contention is even academic in view of the fact that it is not disputed that the State Government have treated the Petitioners as members'' of the Educational Service of this State, but ordered them to retire on pension. They have purported to make this order under the Pension Rules governing the service of their employees in this State.

In this context, reliance has been placed for the Petitioners on Section 7, India (Provisional Constitution) Order, 1947, promulgated by the Governor General on 14-8-1947, on the authority of Section 9, Sub-section 1(c), Indian Independence Act, 1947. Section 7(1) of the Order runs as follows:

Subject to any general or special orders or arrangement affecting his case, any person who immediately before the appointed day is holding any civil post under the Crown in connection with the affairs of the Governor-General or Governor-General in Council or of a Province other than Bengal or the Punjab shall as from that day be deemed to have been duly appointed to the corresponding post under the Crown in connection with the affairs of the Dominion of India or, as the case may be, of the Province.

The Petitioners submit that by virtue of this provision, the Petitioners would be deemed to have been duly appointed to the corresponding posts in the Province of Assam within the Dominion of India, they having held civil posts under that Province before 15-8-47, which was the ''appointed day''.

The answer suggested to this contention on be-half of the Government is two -fold. It is suggested in first place that after Sylhet went out of the territory of Assam, there were no corresponding posts in the State to which the Petitioners could be deemed to have been appointed. The Petitioners were holding'' posts as Lecturers in the Murarichand College of Sylhet. These posts, therefore, did not exist, and the Petitioners could not claim to have been duly appointed to any such corresponding posts with in the meaning of Section 7(1) of the Order.

The argument is attractive but does not carry conviction. If the word ''post'', as used in that section, has reference only to the particular institution where the Petitioners were employed at the time when the partition took place, the argument would be plausible. But, in construing the section, one cannot forget the background of inexorable facts and circumstances under which these legislations came into being and the object for which these legislations were intended. The Petitioners were undoubtedly in the employ of the Government of Assam holding the posts of Lecturers in Part II of the Assam Educational Service. They had already opted for continuing to serve in that Province even after the partition. Their employment; therefore, had not ceased at any stage, and the whole object of Section 7(1) was that all these employees should continue to serve in the posts corresponding to those which they had been holding prior to the partition. The word ''post'' therefore, occurring in that section, in my opinion, has been used in a much wider sense than what the learned Counsel for the Respondents would have us accept. ''Post'' here does not refer merely to the post of a Lecturer as attached to or confined within the precincts of a particular institution, but to a post held in a cadre or service under some (same?) grade of that service.

The posts held by these Petitioners were posts of Lecturers in Grade II of the Cadre of the Assam Educational Service, and it was in that sense, if I am not wrong, that the word ''post'' has been used in Section 7(1) of the Order. If a narrower meaning were to be attributed to that expression, then a person on leave, though holding a post in a particular cadre of service, will not be deemed to be, in fact, holding any post at all, because during the period of his leave, he is not physically attached to any particular institution. The post, therefore, though described as a post in a particular institution, is actually a post held in a grade of a particular cadre or service. In this view of the matter, the Petitioners'' case is supported by the provisions of that section.

In the next place, Mr. Medhi has contended that the Indian Independence Act, 1947, itself would have no application to the District of Sylhet, and people employed in that District after that District had gone out of the original Province of Assam, as it existed prior to the partition. He relies for this purpose on Sub-section (2) of Section 3 of the Act which says that

a part of the Province of Assam shall, in accordance with the provisions of Sub-section (3) of this section, form part of the new Province of East Bengal

in accordance with the Referendum held in the District of Sylhet. Therefore, the order promulgated by the Governor General by virtue of his authority u/s 9 of the Act, will have no application to the District of Sylhet which went out of the newly formed State of Assam.

This contention evidently ignores the fact that the State of Assam, as forming part of the Indian Dominion, did exist even though a part of the original Province of Assam was taken out of it when the Dominion came into being. The Indian Independence Act applies to both the Dominions and, in consequence, it does apply to the State of Assam. The question is not whether Sylhet remained a part of the State or went out of the State. The question is whether the employees serving in that District before the partition, who had opted for service in the Dominion of India, continued to be employees of the State of Assam as forming part of the new Dominion. There is no doubt that the Indian Independence Act does apply to the State of Assam; and the employees of that State, therefore, were entitled to the protection of the order promulgated under the Indian Independence Act, irrespective of the fact that the place where they were serving for the time being had ceased to be any longer a part of the State.

As I have said, these contentions have more or less an air of unreality about them having regard to the admitted facts and circumstances of the case. As the various Annexures to the petitions themselves show, Government have admittedly treated them as employees of this State, and it is not open to them now to contend to the contrary. As employees of the State, they are entitled to all the privileges which are conferred on them by the rules governing their conditions of service. I need hardly observe that the Indian Independence (Rights, Property and Liabilities) Order, 1947, to which reference war made by Mr. Medhi at one stage, has no application to the Petitioners at all, because they were not employed under any contract of service. They were holding permanent appointments with statutory guarantees, and were not on any contractual basis at all.

This brings me now to a consideration of the most important question in the case: whether the Petitioners have been validly discharged or their services properly dispensed with, as required by the law. The Petitioners contend, that the order of discharge amounted to a dismissal or removal from service, and notice, as required by Section 240, Government of India Act, 1935, had to be served on them before any adverse order could be passed or prejudicial action taken against them.

Their case further is that the order of discharge was not in conformity with the conditions of service and was unauthorised. The Petitioners were admittedly appointed to the Assam Educational Service by the Secretary to the Government of Assam in the Department of Education, as would appear from Gazette notification. But it is urged that the order of their dismissal from service, as contained in the Memo, dated 31-4-48 (Annexure ''B''), was issued by the Assistant Director of Public Instruction, which officer was subordinate to the Secretary and had no power to dismiss or discharge the Petitioners or to terminate their services.

On the above points, Section 240, Government of India Act, 1935, is undoubtedly conclusive. If the orders complained against amount to dismissal or reduction in rank, the Petitioners were certainly entitled to a notice to show cause against the action proposed to be taken: see -- AIR 1948 121 (Privy Council) and further that the order of dismissal or reduction in rank could not be made by an officer subordinate to the one by whom they were appointed.

The Government stand, however, is that there was no question of the application of Section 240, Government of India Act, at all. According to them, they purported to act under the relevant rules of the Assam Pension Manual which regulated the Petitioners'' conditions of service. On behalf of the Government, reliance has been placed in particular on Rules 71, 80 and 112 of the Assam Pension Manual.

The Petitioners, however, contend that the case, if at all fell within Rule 72 of the Manual and it was the duty of the Government to follow the correct procedure laid down by the rules, and that not having been done, their order is wholly illegal.

Before I enter into a discussion of the rules, it would be useful to refer to the relevant Annexures which have a bearing on the point. The most important of them is Annexure BB, Government of Assam, Finance Department, Gen. Establishment Branch, No. P.G. 45/48/1, dated 1-4-1948. It purports to be a circular letter from the Secretary to the Government of Assam to all Heads of Departments. The subject of the Circular is "Reduction of Staff as a Result of Sylhet Separation."

Government rely upon this Circular as their main order dispensing with the services of the Petitioners. As a great deal of argument has centred on this Circular with reference to the application of the relevant rules under which Government purport to have acted, I might as well reproduce it here:

"I am directed to say that in this Deptt. Letter No. PG. 80/47/15, dated 19-9-1947, you were authorised to pay ex-gratia leave salary to all the permanent members of the staff in your Department who were released by the East Bengal Government at Sylhet on account of their exercise of option in favour of "Rest of India" with effect from the date of their release until they were either absorbed or otherwise dealt with. In the Cabinet decisionstaken on 5-9-1947, 29-9-1947, and 1-12-1947 which were communicated to you in Memo. No SS. 11/73, dated 3-10-1947, and Circular No. SS/11/94, dated 6-12-1947, Government authorised the absorption of these officials, as far aspossible, in vacancies created by the release of Government servants to serve in Pakistan.

These measures have and are being given effect to by the Special Officer appointed for the purpose. He will continue the work of absorption in the interests of the Public Service and the personnel as far as practicable. The time has, therefore, come to deal with those posts in Sylhet which, owing to the transfer of a major portion of the territory of that District, have ipso facto become surplus to the requirements of administration.

To save unnecessary cost to the public exchequer on account of these surplus posts and to make the position of Government clear in respect of those released officials who cannot, for various reasons, be absorbed, Government have decided that without prejudice to their future employment, where possible, the holders of these surplus posts should be discharged as early as possible, on compensation pension or gratuity as may be admissible to them under Articles 71 and 112 of the Assam Pension Manual. I am, therefore, to request that you will please take immediate action on the following lines:

(1) Under Article 80 of the Assam Pension Manual, 3 months'' notice of discharge with effect from 1-1-1948, should be served on all the permanent released personnel who have not yet been permanently absorbed stating clearly that due to the transfer of the'' major poption of Sylhet with its institutions, their services will not be required on and from 1-4-1948.

(2) All duty posts in various cadres and establishments that existed in the seceding portion of Sylhet are hereby abolished with effect from 1-4-1948, and the respective cadres in your Department will stand reduced by the number of posts so abolished from that date. Two comprehensive lists of such posts -- one showing those which were treated as on provincial cadres and another showing those which were sanctioned on district basis -- as on 14-8-1947, should be prepared in duplicate in the annexed forms, one copy of which should be submitted direct to the Controller and another to this Department. These orders will not, however, affect those cadres in reorganization which, as a result of Sylhet separation, has in the meantime been sanctioned by Government.

(3) Any further reorganization of cadres under your control, which you may suggest, would be separately justified in the usual way and sanction of Government in the Administrative Departments obtained. In this connection, your attention is invited to this Department letter No. PG. 94/47, dated 8-12-1947, addressed to the Registrar, Co-operative Societies, a copy of which was forwarded to you.

(4) The leave salary already paid from 1-1-1948 and to be paid up to 31-3-1948 to the personnel to be discharged under these orders should be adjusted against the 3 months'' pay payable to them under Article 80 of the Pension Manual.

(5) In so far as the temporary duty posts which existed on 14-8-1947 in the seceding part of Sylhet are concerned, they are to be treated as abolished with effect from the date of release of the incumbents by the East Bengal Government, as the incumbents holding such posts were paid one month''s salary in lieu of notice in accordance with the Government decision of 29-9-1947, communicated to you by the Steering Committee in Circular No. Sections 11/73, dated 3-10-1947.

The document shows that the Heads of Departments were authorised to pay ex-gratia leave salary to all the permanent members of the staff in their respective departments who were released by the East Bengal Government at Sylhet on account of their exercise of option in favour of India, until those officers were absorbed, as far as possible, in vacancies created by the release of Government servants who had opted to serve in Pakistan.

Evidently it appears from the Circular itself that there was no attempt made to absorb these permanent members of the staff in any other vacancies "except those "which were created by the release of Government servants" who had opted to serve in Pakistan. The circular then proceeds to say that although endeavour will be-made to absorb those officers as far as practicable, the time had come to deal with the posts which they held'' in Sylhet, as if the said posts-had "ipto facto become surplus to the requirements of the administration" and, therefore, without prejudice to any future employment, the holders of those surplus posts should be discharged as early as possible on compensation pension or gratuity, as may be admissible to them under Articles 71 and 112 of the Assam Pension Manual.

The Heads of Departments were, therefore, directed to serve notices u/s 80 of the Pension Manual with effect from 1-1-1948 on all such officers who had not till then been permanently absorbed; and "all duty posts in various cadres and establishments that existed in the seceding portion of Sylhet" were thereby abolished with effect from 1-4-1948, and ''the respective cadres stood reduced accordingly.''

The Heads of Departments were also directed to submit recommendations for ''reorganisation of the cadres'' under their respective control, and the leave-salary already paid from 1-1-1948 and to be paid up to 31-3-48 to the personnel discharged was to be adjusted against the three months'' pay payable to them under Article 80 of the Pension Manual. The Circular letter in question does not refer to the "abolition of a permanent post" of any particular officer "selected for discharge", but it speaks of reduction of the various cadres and establishments, by abolishing the posts in the Sylhet District at one time held by these officers. The word "post" here again means "posts" in the various cadres and Departments; otherwise reorganisation of cadre has no meaning.

Rule 71 of the Pension Manual reads thus: "If an officer is selected for discharge owing to the abolition of a permanent post, he shall, unless he is appointed to another post the conditions of which are deemed by the authority competent to discharge him to be at least equal to those of his own, have the option--

(a) of taking any compensation pension or gratuity to which He may be entitled for the service he has already rendered, or,

(b) of accepting another appointment or transfer to another establishment even on a lower pay, if offered, and continuing to count his previous service for pension.

A reading of the document irresistibly leads to the conclusion that this was not a case of mere "abolition of a permanent post" but of "reduction of establishment or cadre".

In pursuance of this order, it is claimed on behalf of the Government, that the letter, dated 21-4-48, was sent to the Petitioners under the signature of the Assistant Director of Public Instruction, Assam, dispensing with their services on and from 1-4-1948, and intimating to them that Government had decided to grant compensation pension or gratuity, as may be admissible, without prejudice to their future employment, and asking them to submit pension papers accordingly (vide Annexure ''B''). If, therefore, Government intended to reduce the cadre or the establishment in various Departments, they could certainly proceed, to do so under Rule 72 of the Pension Rules which says:

The selection of the officers to be discharged upon the reduction of an establishment, should prima facie be so made that the least charge for compensation pension will be incurred.

On selecting the officer or officers to be discharged according to the principle laid down above in Rule 72, Government could take action against them under Rule 71.

Now, there is nothing to indicate prima facie here that Government issued any instructions to select persons for retirement on pension on the principle laid down in Rule 72. It is pointed out for the Petitioners that if this principle had been adopted, the Petitioners would not have been selected for retirement, but other persons in the cadre would have been so selected, and since this procedure was not strictly observed, the action taken against the Petitioners is quite unjustified.

In my opinion, the two Rules quoted above are not mutually exclusive of each other, as the parties appeared to suggest at one stage. Rule 71 may apply exclusively to a case where there is merely the abolition of a permanent post, but where there is the reduction of an establishment or cadre, as contemplated by Rule 72, necessarily involving abolition of permanent posts or offices, then the person or persons selected for retirement according to the principle laid down in that Rule, may still have the benefit of Rule 71. The word ''establishment'' used in Rule 72 is a mere term of convenience, and I presume, carries with it the meaning which is given to it in common parlance; meaning, a permanent organised body; & full regiment of persons; or public institution; and would thus include establishments of ''grades'' or ''cadres'' in services. Here, therefore, what was contemplated was a reduction'' in establishment, and, therefore, it was incumbent on the Government to follow the principle given in that Rule.

It is not right to state that Rule 72 had no application to the case. In my opinion, the proper procedure should have been a reduction of the cadre by abolishing the posts that had become surplus on account of Sylhet having gone out of the State of Assam, and to reduce the cadre of the Educational Service to that extent and then to select persons in the cadre for retirement so as to create the least charge for compensation benison, and then, when the persons had been so selected, to give them the benefit of Rule 71 of the Pension Rules. This procedure has not at all been followed in this case, with the result that the Petitioners have become victims of the illegal and haphazard procedure.

Government, in their counter-affidavit, have admitted that the total strength of the Assam Educational Service before the partition was 94, but the partition necessitated a proportionate reduction in the strength of that Service to 50 only. In the face of this, the learned Government Advocate could not contend that it was merely a case of abolition of a permanent post and not a reduction of cadre or establishment.

I am also not satisfied that Government could direct these Petitioners to be discharged without making any attempt to absorb them in any other vacancies except those -- may be very limited --: that were released on account of Government servants'' opting to serve in Pakistan. That would be against the entire spirit of the guarantee given to the Petitioners when obtaining their option to serve in this Dominion. I do not suggest for a moment that the effect of the guarantee was to ignore or extinguish the power which Government possessed under the Pension Manual regulating the conditions of service of their employees; but if the employment of these officers were restricted only to the vacancies created by such others who went over to Pakistan and to no other vacancies, then the guarantee was practically nullified. There was no valid justification for not employing these officers in any other vacancies that arose in the Services, provided the Petitioners were otherwise qualified for them.

The affidavit in reply filed on behalf of Government shows that a vacancy had occurred in the Bengali Department of the Cotton College since partition in respect of a permanent post of Lecturer in Sanskrit in 1949, yet no attempt was made to absorb the Petitioners in that vacancy. The excuse proffered is that the post of Lecturer in Sanskrit was advertised in the Assam Gazette-with specific direction that officers, placed in the same predicament as the Petitioners, may also apply, but since the Petitioners did not do so, they were themselves to blame.

This, in my opinion, placed the Petitioners in a very unfair and disadvantageous position. It implied that the Petitioners were bound to assume that the order dispensing with their services was a legal order and then take their chance with other new candidates for the post. I am, how-ever, not concerned to judge the step taken by Government so long as they act within the framework of their Rules. I was only seeking to point out that even if action had been taken under Rule 71, the Petitioners should have been absorbed in some other vacancies also, and not merely limited to those which were "created by the release of Government servants to serve in. Pakistan."

The stage of Rule 80 or Rule 112 comes in after the requirements of Rules 72 and 71 have been fulfilled. Reduction of establishment, of course, would involve abolition of permanent posts or offices.

Mr. Medhi realised these difficulties and perhaps on that account sought to justify the action of Government, as a last resort, under Rule 78 of the Rules. This rule relates to ''special cases'' and provides thus:

If it is necessary to discharge an officer in con-quence of a change in the nature of the duties of his office, the case should be referred to Government, who will deal with it in accordance with the rules laid down in this section as to notice of discharge and compensation pension or gratuity.

I am unable to see how Rule 78 has any application to this case. On the face of the Government Circular, there cannot be the slightest pretension for the application of the Rule which relates to very special cases not contemplated by any of the orders of Government, in question before us. It is not suggested here that there was any "change in the nature of the duties" of the Petitioners'' offices, thereby necessitating their discharge. I have been unable to find any justification for the orders passed in these cases, dispensing with the services of the Petitioners and forcing them to retire on compensation pension or gratuity.

Mr. Medhi has also argued that the Petitioners'' application under Article 226 should not be entertained because they had a right of appeal under Rule 57(5) of the Civil Service (Classification, Control and Appeal) Rules, Section 1, Part XIII. The Petitioners have stated that they made representations to Government, but without any success. Rule 57(5) of the Classification Rules evidently has nothing to do with these cases, because it relates to appeals against penalties imposed under Rule 49. It is not the case of Government that the orders passed against the Petitioners were in the nature of penalties falling under Rule 49 of the Rules. If they were penalties, then Section 240, Government of India Act, had to be strictly complied with. But, as I have said, they are not; and, therefore, Rule 57 does not affect the matter.

In any case, the order passed by Government is challenged here as ultra vires and without jurisdiction; and, therefore, if there was an alternate remedy open to the Petitioners, this Court would not be precluded from interfering. It has been often pointed out that the remedy under Article 226 is not altogether excluded by any other remedy, and it is for the Court to consider whether, on the facts of a particular case, it would be justified in conceding this extraordinary remedy.

There is one other point to which I must refer before I close. The Petitioners give a long narration of circumstances to show mala fides on the part of Government, based on discrimination arising out of place of birth and residence. If those facts had been substantiated, I shudder to think of the tragic consequences on national integrity and solidarity. The mandates of Article 16 of the Constitution are clear and specific. I am, however, relieved to find that there is nothing quite definite to substantiate the allegations, and the learned Counsel for the Petitioners has acted wisely in not giving any undue prominence to them in his arguments.

It is true that in, the counter-affidavit filed on behalf of Government, it was admitted that one of the additional reasons for selecting the Petitioners for retrenchment was some principle of regional representation. Such a principle, though quite in tune with the policy of ''divide et imperia'', which held the field in the foreign regime, may be dangerous and disruptive in the present national set-up, except under the bounds of Article 16 of the Constitution. It must be, however, noted that the incidents relate to a period when the country had just emerged from the foreign yoke and the Constitution of India had not been hammered into shape. The adoption of the principle, which was a legacy of the past, may be ill-advised, but I am not prepared to attribute any mala fides to Government on this admission alone.

The net result of my discussions is that the orders, passed against the Petitioners are held to be illegal, and unauthorised. It is, therefore, directed that those orders shall not be given effect to, and that the Petitioners shall be deemed to have continued to be members of the Assam Educational Service, Grade II, with all the rights, incidents and privileges attaching to that Service, and according to the conditions governing the same. These Rules are accordingly made absolute. The Petitioners are entitled to their costs; Hearing fee Rs. 100 in each case.

Ram Labhaya, J.

I agree. I desire to make a few observations on some important questions that arise in the case.

The Petitioners received option papers in the first week of July from the Chief Secretary to the Government of Assam. The letter of the Chief Secretary was dated 25-6-1947. By this letter, the Petitioners were given an opportunity to select the Government they wished to serve. The letter conveyed the assurance that the representatives of the two future Governments of Pakistan and the rest of India guaranteed the existing terms and conditions of service. The decision to give the option with this guarantee was arrived at by the Special Committee of the Partition Office, Government of India, which was appointed to work out the machinery for implementing partition of India.

The Petitioners exercised their option in favour of India. The guarantee conveyed in the option papers would be binding on both the Dominions u/s 9, Indian Independence Act of 1947.

The first section of this Act provides that from 15-8-1947, two independent Dominions shall be set up in India to be known respectively as India and Pakistan. Section 9(1)(a) of the Act authorised the Governor-General by order to make provision as appeared to him to be necessary or expedient, among other things, for bringing the provisions of the Act into effective operation. Clause (f) of Section 9(1) enabled the Governor-General to make provisions for enabling agreements to be entered into, and other acts done on behalf of either Dominions before the appointed date. Sub-section (4) of the section laid down that any orders made under this section, whether before or after the appointed day, shall have effect up to the appointed clay in British India, and on and after the appointed day, in the new Dominion or Dominions concerned.

Orders passed under the Act even before 15th August for the purpose of dividing India into two Dominions, which was the main purpose of the Indian Independence Act, were made binding in British India before the 15th August, and on the Dominions, after that date. Both the Dominions are bound by orders passed under the provisions of the Indian Independence Act for the purpose o,f carrying out the purposes of the Act.

The option given to Government servants was according to the decision of the Special Committee of the Partition Office of Government of India. It was part of the scheme of partition. It was, therefore, binding on both the Dominions even after 15th August. It cannot be argued that the Provinces in the two Dominions were not bound by orders because they were issued by the Government of India. The division of India into two parts involved the division of at least three Provinces.

The Dominions consisted of specified Provinces. If Provinces were not bound by the decision of the Special Committee of the Partition Office appointed by the Government of India, the partition of the country could not be carried out. The purpose of the Act would be defeated if the Provinces were left free to'' comply or not with the orders of the Government of India for bringing the provisions of the Indian Independence Act into effective operation. The two Dominions were collections of several Provinces, and a Dominion could be effectively bound by orders for implementing the decisions about partition only if all the Provinces constituting the Dominion were also bound. The Government of Assam was bound to give effect to the guarantee even though the option papers offered the guarantee of the two future Dominions.

On 13-8-1947, two days before the appointed date, the Assam Government came to the decision that any Government servant who is a native of or domicile in the District of Sylhet, should remain there irrespective of his choice to serve in any Dominion and that he would not be exchanged against officers outside Sylhet who may have opted for Pakistan. The Government of Assam further laid down that it will take no further responsibilities for such officers after the 15th August. Those officers who are natives of or domiciled in the rest of India and who may have opted for Pakistan were not to be allowed for the time being to exercise their option to join Pakistan.

This decision is, on the face of it, a complete reversal of the decision of the Special Committee of the Government of India under which the option was given to Government servants to select the Government they, wished to serve. Officers who were natives of or domiciled in. the District of Sylhet were to remain there regard-less of the choice they had made. They were not to be exchanged against or with officers who were natives of or domiciled outside Sylhet even if they had opted for Pakistan. This decision was beyond the competence of the Assam Government. Its effect also was to prevent Government servants who were natives of or domiciled in any part of Assam outside Sylhet from going to Pakistan even if they wished to migrate. Such vacancies as could be created by their voluntary migration to Pakistan thus could not come into existence.

This decision was not communicated to the Petitioners officially at any time. It was secret and confidential. How and when they got the information about it is not clear. It was arrived at on 13th August. They were in Pakistan at the time. They could not know about it before 15th August. At any rate, there is no suggestion that they had information about this decision at a time when they could cancel or revoke their selection of the Dominion of India as the Dominion of their choice.

In their letter, dated 1-4-1948 (Annexure BB to the petitions), the Government referred to their earlier letter of 19-11-1947, by which it authorised the Heads of Departments to pay ex-gratia leave salary to all permanent members of their staff who were released by the East Bengal. Government at Sylhet on account of the exercise of their option in favour of the rest of India. It also referred to its decision taken on 5th September, 29th September and 1st December by which the Heads of the Departments were authorised to absorb these officials, as far as possible, in the vacancies created by the release of Government servants to serve in Pakistan.

Whilst this process was going on, the Government directed that with a view to saving unnecessary costs to the public exchequer on account of these surplus posts and to make the position of the Government clear in respect of the released personnel who cannot be absorbed, the holders of these surplus posts be discharged as early as possible on compensation pension or gratuity as admissible to them under Articles 71 and 112 of the Assam Pension Manual. The lines on which action was to be taken were also indicated in para 2 of the letter.

Under Article 80 of the Assam Pension Manual, three months'' notice of discharge was to be given with effect from 1st January, though the letter conveying this direction was being issued on 1-4-1948. In pursuance of the directions conveyed in this letter, the Petitioners were served with three months'' notice of discharge by a letter, dated 21-4-1948. The notice was to take effect from 1-1-1948. According to the directions contained in Annexure BB, the Petitioners were expressly told that their services were dispensed with due to the transfer of the major portion of Sylhet with its institutions to East Bengal. The decision takes no notice of the guarantee given to the Petitioners when they exercised their option and which induced their migration to India.

Considering the three documents referred to above together, it is clear that the Government of Assam decided not to give effect to the selection of Dominions made by Government servants to whom option paper had been sent. In pursuance of this policy, it was decided that the released officers from Sylhet should be absorbed only in vacancies created by officers who had migrated to Pakistan. The migration to Assam was discouraged, if not prohibited. Such vacancies as might have occurred, could therefore not come into existence.

In any case, absorption of officers, from Sylhet was made conditional on what may be described, for the sake of brevity, as Pakistan vacancies. This amounted to attaching a condition to the unconditional guarantee given. Discovering that they could not be absorbed on that basis, the decision was taken to dispense with their services. They became surplus as no Pakistan vacancies were available. Any abolition of posts or reduction of cadre that was made, was on the ground that Pakistan vacancies were not available.

The available material does not disclose any basis for the view that these two officers were unabsorbable surplus to the requirements of the Assam Government. The decision was not on the normal basis of a post becoming unnecessary, or a cadre becoming surplus. The whole case was dealt with on the basis outside the rules which regulated the conditions of services of the Petitioners.

The Pension Rules do not provide when a post may be abolished or a cadre reduced. The circumstances under Which a post may be abolished or a cadre reduced, ought to be in the rules which regulate the conditions of service. We have not been referred to any such rule. I am, however, assuming that the Government has the right to abolish any post if it is found necessary, or to reduce a cadre when it is found that any part of it has become surplus to the requirements of the administration, but as shown above, this is not the basis on which the Petitioners were discharged.

The possibility of their absorption on the wider ground of the needs of the Assam administration was not examined, though attempt was made to absorb them in Pakistan vacancies. The case is, therefore, above and beyond the ordinary rules. Reference to the Pension Rules in Annexure BB became necessary, as by reason of the decision to dispense with the services of the Petitioners, notices had to be served on them and some kind of compensation or gratuity had to be paid.

These rules came into operation after the decision to abolish the posts or to reduce the cadre had been taken. They mainly bear on what compensation or gratuity had to be paid under the circumstances of these cases. They do not help to determine the reasons which induced the decision to dispense with the services of the Petitioners. The fact, therefore, remains that the discharge of the Petitioners from service was due to the non-existence of Pakistan vacancies. As said above, it involves the contravention of the guarantee which is binding on the Government. Contravention of the statute also is involved. The orders, therefore, are illegal.

The error in the policy which the Government of Assam followed, was due apparently to some misapprehension about the constitutional position. The Government, it appears, genuinely believed that it was not bound to give effect to the exchange of officers on the basis of the exercise of option by them. The decision of the Government of Assam may not have involved any contravention of the Government of India Act, 1935, as it stood unadapted before partition, but the Independence Act, the basis of which was the partition of India into two Dominions, altered the constitutional position. Partition had to be carried out.

The power was given to the Governor-General to issue necessary orders for giving effect to the provisions of the Indian Independence Act. The policy pursued by the Government of Assam is opposed to the vital provisions contained in that Act, and therefore, the orders passed in the two cases cannot be justified on any conceivable basis. The Petitioners were induced to opt for India on a tempting assurance. The whittling down or the revoking of the guarantee solemnly given under the Indian Independence Act contravenes Section 9 of the Act. It is not merely a breach of an agreement.

The Petitioners claim that they are citizens of India, and they migrated in September, 1947, very soon after the partition. On these facts,. they would be citizens of India. They were treated as members of the Educational Service immediately after the partition. They had been put on ex-gratia leave and they were discharged after notice. In the counter-affidavit, all that is stated is that the Government do not admit that the Petitioners were citizens of India.

The petitions are supported by affidavits. The facts stated therein are not denied. The Petitioners could therefore rely on those facts. The Government has merely expressed its ignorance about their claim. There was no serious controversy on this point at the argument stage.

The Government of India is not at all a necessary party to the proceeding. No relief could be asked for against that Government. I have shown above that the Government of Assam was bound by the decision of the Partition Committee of the Government of India. The decisions of that Committee were not dependent on the assent of the Government of Assam. They were binding on all the Provinces by virtue of the provisions contained in the Independence Act. If the consent of the Assam Government was necessary, it was given by necessary implication. The option was conveyed to officers through the Assam Government. The Government of Assam thus became a party to the implementation of the decisions. The guarantee given in the option was that the existing terms and conditions of service would continue. These could continue only by the optees being allowed to serve the Government of Assam as they were doing before 15-8-1947. Effective relief can be given to the Petitioners in the petitions, as constituted, and the petitions cannot fail for want of necessary parties.

It has been strenuously argued that the Petitioners can get no relief under Article 226. The first ground of objection is that Article 226 could not be invoked as the impugned orders by which the services of the two Petitioners were dispensed with were passed some two years before the Constitution came into force. Issue of any writ or order by this Court under Article 226 to prevent enforcement of these orders would amount to giving retrospective effect to Article 226 which it does not possess.

In -- ''AIR 1954 Gau 152 (F)'', a Division Bench of this Court declined to apply Article 226 in which a judicial proceeding under the Land and Revenue Regulation was pending on the date the Constitution came into force. Mr. Medhi has relied on this decision in support of his contention. The judgment in this case was delivered by me. The case of the Petitioner was that by an order of 10-3-1949, a settlement of land in his favour was cancelled. This cancellation of the settlement involved according to him, contravention of his fundamental right to property. The validity of the order was also assailed on the ground that it was without jurisdiction.

Petitioner''s appeal against the impugned order was pending on the date the Constitution came into force as stated above. It was held that even if a right which became fundamental from the date of the commencement of the Constitution was infringed before the Constitution came into force, Article 226 could not be applied or utilised retrospectively, as there were no fundamental rights before the Constitution came into existence.

The decision in -- Keshavan Madhava Menon Vs. The State of Bombay, which was explained and distinguished in -- Lachmandas Kewalram Ahuja and Another Vs. The State of Bombay, was a complete answer to the contention raised in the case. The decisions reported in -- The State Vs. Judhabir Chetri, and -- ''Rajaram Dadu v. The State'' AIR 1951 Nag 443(FB)(J) were also referred to.

The State Vs. Judhabir Chetri, is a Full Bench decision of this Court. It was laid down in this case that Article 227 had no retrospective effect and the High Court could not interfere with an appellate order under the Assam Opium Prohibition Act which was final u/s 17(3) of the Act. The appeal in the case was pending when the Constitution came into force. The appellate order was passed after the commencement of the Constitution. On these facts, interference with the order under Article 227 was declined on the strength of the principle laid down in -- ''Colonial Sugar Refining Co. Ltd. v. Irving'' 1905 AC 369(K).

A Special Bench of the Calcutta High Court held in -- Bimala Prosad Ray and Another Vs. State of West Bengal, that Article 227 had no retrospective effect. In consequence, the Special Bench declined to interfere with the order of the Land Acquisition Officer by which he had refused to refer the matter to the District Judge. This order was passed before the Constitution came into force and was final. The Court refused to interfere with it under Article 227 holding, that it would involve giving retrospective effect to Article 227.

The nature of the provisions contained in Article 227 had to be considered. The argument on behalf of the Petitioners was that Article 227 was purely procedural in character and therefore could operate retrospectively. This contention did not prevail.

The learned Chief Justice relying on the decision in -- AIR 1927 242 (Privy Council) which was based, on the princilpe authoritatively enunciated in -- '' 1905 AC 369(K)'' observed that

Article 227, although it does not in terms give right to interfere with orders, it is an Article which according to Mr. Bose''s contention and the view of the High Courts in earlier cases, does give a right to High Courts to interfere in proper cases and therefore does give right to the parties to move this Court to vary or reverse orders, i.e., to exercise powers similar to those as are exercised in an appeal. The right now sought to be enforced is the right to move this Court to interfere with orders of a tribunal and it appears to me that any Article in the Constitution giving that right must be construed in the same manner as provisions in a statute would be construed which gave a right to parties to challenge a decision, either by appeal or revision.

I found myself in respectful agreement with the above view and gave effect to it with the concurrence of the learned Chief Justice (Thadani, O. J.) and my learned brother Deka J. in The State Vs. Judhabir Chetri,

In AIR 1954 gau 152 (F)'', Article 226 was not applied retrospectively under similar circumstances. The jurisdiction given to the High Court under Article 226 was regarded as similar in nature.

No rule of construction is more firmly established than this: that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. ''(1898) 2 QB 547 at pp. 551, 552(A)''.

The general presumption in regard to alterations in procedure is that such alterations operate retrospectively unless there are some good reasons against it. Where a right of appeal is given or taken away during the pendency of the proceeding the right is so important that even though it marks a stage in the judicial proceeding and therefore is a part of the procedure regulating the trial or the enquiry, it is treated as a right. It may not operate retrospectively unless it is so provided in express terms or by necessary intendment.

There can be no doubt that the presumption against a retrospective operation has no application to the enactments which affect only the procedure and practice of courts even though the alterations may operate to the disadvantage of one of the parties. But to deprive a suitor in a pending action, of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. The Appellate Court must give effect to the same law as that which was in force at the date of the earlier proceeding"--vide page 233, Maxwell on the Interpretation of Statutes, 9th Edition.

In the case of the; Colonial Sugar Refining Co. Ltd. (K)'' the right of appeal'' from the Supreme Court of Queensland to His Majesty in Council given by the order in Council of 30-6-1860 was taken away by the Australian Commonwealth Judiciary Act, 1903 (Section 39, Sub-section (2)) and the only appeal therefrom lay to the High Court of Australia.

It was held that the Act was not retrospective and a right of appeal to the King in Council in a. suit pending when the Act was passed and decided by the Supreme Court afterwards was not taken away. Lord Magnaghten who delivered the judgment observed as follows:

As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches the right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the Appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And, therefore, the only question is, was the appeal to His Majesty in Council a right vested in the Appellants at the date of the passing of the Act, or was it a mere matter of procedure? It sterns to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case, there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.

To deprive a litigant of the right of appeal during the pendency of an action was described as something different from regulating procedure. Here, there is an exception to the general rule relating to the presumptive retrospective effect of provisions relating to procedure.

In -- AIR 1927 242 (Privy Council) their Lord-ships had a converse case. By Section 8, Indian Income Tax (Amendment) Act, 1926, Section 66A, was inserted in the Act of 1922. It provided for the first time that an appeal would lie to His Majesty in Council from a judgment of the High Court delivered on a reference made u/s 66 in any case which the High Court certifies to be a fit one for appeal to His Majesty in Council. The order in question was passed before 1-4-1926. In dispesing of the question whether the Petitioner had any statutory right of appeal to His Majesty, Lord Blanesburgh observed as follows:

The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the ''Colonial Sugar Refining Co. v. Irving (K)'' where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction, be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders, which, when the statute came into force, were final, are provisions which touch existing rights....

In this pronouncement, Lord Blanesburgh has laid down a real test for determining when provisions relating to procedure operate retrospectively. Provisions of procedure which if applied retrospectively would deprive of their existing finality orders which when the statute came into force were final or which touch the existing rights are presumptively prospective in effect and the general rule of interpretation applying to procedural provisions is subject to the exception that when the provisions of procedure touch existing rights, they do not operate retrospectively in the absence of express enactment or necessary intendment.

In -- Bimala Prosad Ray and Another Vs. State of West Bengal, and also in -- The State Vs. Judhabir Chetri, Article 227 was regarded as a provision which could affect rights if applied retrospectively. The jurisdiction under Article 227 was treated as similar to appellate or revisional jurisdiction. Suitors have the right to move the High Courts under this Article and orders of Courts and tribunals may be interfered with under this provision. The article provides a remedy which was within the scope of the decision in the ''Colonial Sugar Refining Company''s case (K)''.

The question now is whether Article 226 is retrospective in effect. It confers on the High Court very wide powers. Appropriate prerogative writs and other orders or directions may issue under this Article for enforcement of fundamental rights and for other purposes. It may be regarded as settled law that if the basis of the proceeding is an infringement of a fundamental right, Article 226 has no retrospective operation. The reason is obvious. There were no fundamental rights before the Constitution came into force. Contravention of fundamental rights may be cured if that takes place after the commencement of the Constitution.

The matter is put beyond the pale of controversy by the decision of their Lordships of the Supreme Court in -- ''Keshavan Madhava Menon''s case (C)''. But the enforcement of fundamental rights does not exhaust the scope of Article 226. It could be utilised for other purpose as well. ''Other purposes'' have been held to include enforcement of legal rights, not necessarily fundamental. Now in regard to the enforcement of the fundamental rights, the Article has admittedly no retrospective effect. Does it have retrospective effect when it is utilised for enforcement of other rights, is the question.

Proceedings under Article 226 have been treated as original in character. They, however, may involve a challenge to judicial or quasi-judicial or even administrative orders. Whatever the technical character of the proceeding, the remedy which the Article makes available is of an extraordinary character. It affords a wholly new means or method of an unusual character for enforcement of legal rights. Briefly put, a new and a very wide jurisdiction has been conferred on the High Courts to cure all conceivable species of injustice, where ordinary law provides no adequate remedy. The remedy may resemble in nature and effect a suit or an original proceeding or an appeal or revision. Cases in which recourse may be had to the powers under Article 226 may be few, but it is obvious that it provides a remedy which, in appropriate cases, may be availed of by aggrieved parties.

Like Article 227, it does not confer any substantive right on any person, but where the Petitioner can bring his case under Article 226, the exercise of wide discretionary jurisdiction may become obligatory. An aggrieved party has the right to move the Court under Article 226, in any case in which its application is attracted. In the exercise of powers under Article 226 orders covering a large variety may be interfered with. It follows that a right to move the Court for interference with acts or orders which affect fundamental rights or legal rights is created. The comprehensive power of superintendence over authorities which are bound to act according to law, which it involves, has that consequence. Its retrospective use can touch existing rights under certain circumstances. Even though procedural in character, it cannot be permitted to operate in such a way that existing rights may be affected for the Article does not provide for that effect in express terms or by necessary intendment.

In this view, recourse may not be had to it to deprive orders of their existing finality which have become final before the Constitution came into force. It may also be not utilised as a fresh remedy in proceedings which were pending on the date on which the Constitution came into force. The general rule in regard to judicial proceedings is that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights. (Maxwell on Interpretation of Statutes, p. 229). The decision in -- ''1905 AC 369(K)'' has the same effect.

According to Chief Justice Chakravarty,

Article 226 merely enables the High Courts to exercise their power, of revision and correction in a new form and in a new type of proceeding.

That Article has created no substantive right, but only provided a new form of remedy through the High Court which might well have been done by an Act of the appropriate Legislature or Legislatures.

I am in respectful agreement with this view about the nature of the remedy provided by Article 226. But if I may say so with great respect, from its very nature, it cannot alter the course of a pending proceeding nor can it deprive order passed before the Constitution came into force of their existing finality for in either case, it would touch existing rights.

In conformity with the principle stated above, the new remedy made available by Article 227 was not allowed to a party in a pending proceeding in -- The State Vs. Judhabir Chetri, and similarly Article 226 was not applied to a proceeding which was pending on the date the Constitution came into force in -- '' AIR 1954 Gau 152(F)''.

The two Nagpur decisions, -- ''AIR 1951 Nag 443(FB)(J) and -- ''Tribhuwannath Pandey v. Govt. of the Union of India'' AIR 1953 Nag 138(N) also do not support the contention raised by the learned Advocate. In -- ''AIR 1951 Nag 443(FB)(J)'', recourse was not had to Articles 226 and 227 against orders which had become final before the Constitution came into force. In -- ''AIR 1953 Nag 138 (N)'', the proposition was stated somewhat broadly but it has to be seen and interpreted in the background of the facts of the case. The rule stated was applied to two prayers which related to matters which arose before the Constitution. Presumably no objection could be taken to these orders before the Constitution came into force. The reasons for the view were not stated.

The Assam and Nagpur decisions are of no avail to Mr. Medhi. They are clearly distinguishable. The new remedies which came into existence on the commencement of the Constitution do not affect judicial proceedings pending on the date the Constitution came'' into force. But, the facts of the two cases now before us are very different. The impugned orders were passed on 21-4-1948. On that date, the remedy pro-vided by Article 226 was not available. The Petitioners had the right of suit. This is conceded) to them. On the date the Constitution came into force, this right was alive. Both could sue for a declaration that the orders dispensing with their services were wrong, illegal and without jurisdiction. While this right was subsisting, the new; remedy came into existence.

The Petitioners decided to pursue the new remedy before the rights became barred. There was no pending judicial proceeding whose course this pursuit could affect, nor would the order of any competent court or tribunal, binding on parties, be deprived of its finality under the law. The orders of the Executive Government could have been revised at any time before these petitions were presented and were not final at least so far as the Government was concerned. They were also subject to any decision with regard to their validity by a competent court.

In these circumstances, there is no impediment in the way of its use in these petitions when the causes of action were alive and had not been lost by efflux of time when jurisdiction under Article 226 was invoked. The delay in invoking the jurisdiction of the High Court under Article 226 may be a good ground for declining to grant relief but where there are no laches and there is subsisting cause of action which involves assertion and denial of rights, the new remedy may be availed of subject to the condition that it should not touch existing rights. It may be observed here that there was no appreciable delay in invoking the jurisdiction of the Court under Article 226.

In -- Hindustan Motors Ltd. Vs. Union of India (UOI) and Another, the notices of demand by Customs authorities were issued in November and December 1949. The demand was sought to be enforced after the Constitution had come into force. The Company resisted the demand and invoked the jurisdiction of the High Court which Article 226 conferred on it. The learned Chief Justice did not think that it was asking for application of the Constitution with retrospective effect. Even if it was, he thought that'' it was no more than a mere application of procedure.

He, however, did not base his decision on this view. He preferred to found it on the larger ground that provided there has been an assertion of a claim after the Constitution and provided the claim is not one under the right created for the first time by the Constitution itself, but is one under some other pre-existing law, Article 226 empowers the High Court to deal with it by means of appropriate writs or directions, although the claim may have originated before the commencement of the Constitution. The effect of the proposition laid down is that the Article has no retrospective effect in its application to fundamental rights. They did not exist before 26-1-1950. In regard to other rights, it requires that there should be a claim under some pre-existing law and there should be an assertion of that claim under that pre-existing law after the Constitution came into force. These conditions would not be satisfied if matters have been finally determined under the laws which were in force immediately before the Constitution or they constitute the subject-matter of pending judicial proceedings. Where a person has a claim under a pre-existing law and decides to enforce it by invoking the extraordinary jurisdiction of the High Court under Article 226 for the first time after the Constitution comes into force, there would be no impediment in his way. The pursuit of the remedy under these circumstances would not touch existing rights. If it does not, the remedy may be pursued without objection, Article 226 not being part of the substantive law. In this view of the matter, the rules may not be discharged on the ground that the petitions under Article 226 are not entertainable. The Petitioners are not precluded from invoking the jurisdiction of this Court under Article 226 if they can satisfy the Court that there is a case for interference with the orders by which their services were dispensed with.

It has also been contended with a great deal of emphasis that no relief can be given to the Petitioners tinder Article 226 as they had the right to sue. They had also a right of appeal against the decision of the Government to the Governor. They have not availed of these remedies. In view of the existence of these remedies, the jurisdiction of this Court under Article 226 cannot be invoked. Reliance has been placed on -- Naubat Rai Vs. Union of India (UOI) and Another,

In the Punjab case relied upon, it was found that there was no basis for holding that no sufficient opportunity to show cause as required by Article 311(2) was given to the Petitioners. It was a case in which, the Petitioner was removed from service by competent authority after due enquiry. The powers which Article 226 confers on the High Courts, are wide. But it may now be regarded as almost settled that writs or orders under Article 226 should not ordinarily issue where an alternative, adequate and effective remedy is available. The proceedings under Article 226 are of a summary nature. The jurisdiction is extraordinary. It has to be exercised very sparingly and only in cases where the rights of persons have been contravened and they have no other adequate remedy available to them. The remedy cannot be allowed to be utilised as a substitute for ordinary remedies that are available under the general law, The extraordinary nature of the jurisdiction involves the obligation that extraordinary jurisdiction should be exercised under limitations which while preserving its utility, do not convert it into a summary remedy or a shortcut in cases where redress could be obtained by remedies in the nature of suits or other similar proceedings. It would not, however, be expedient to lay down any general rule applicable to all cases. Any attempt in that direction would be futile.

Distinction will have to be made between ordinary cases and cases of flagrant injustice where immediate or urgent action of an extraordinary kind is called for. The merits of the case would be the determining factor in most cases. The Courts, therefore, have avoided laying down an inflexible rule to the effect that the mere existence of an alternative remedy operates as a bar against the exercise of the jurisdiction of the High Court under Article 226. The alternative remedy has to be adequate and efficacious and in cases of urgency, it should be capable of affording prompt relief.

In -- Rashid Ahmed Vs. The Municipal Board, Kairana, at p. 165(P), Das J. observed as follows:

There can be no question that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs, but the powers given to this Court under Article 32 are much wider and are not confined to issuing prerogative writs only. The Respondent Board having admittedly put it out of its power to grant a license and having regard to the fact that there is no specific bye-law authorising the issue of a license, we do not consider that the appeal u/s 318 to the local Government which sanctioned the bye-laws is, in the circumstances of this case, an adequate legal remedy.

It follows from this authoritative pronouncement that it has to be seen in each case even under Article 226 whether remedies available to the Petitioners are so adequate or effective that their existence disentitled them to relief under this Article. In -- ''Mrs. Lilawati Mutatkar v. State of Madhya Bharat'' AIR 1952 Mad 105(Q) also, it was observed that power under Article 226 be not exercised if the Petitioner has another convenient or adequate remedy.

It has been contended and rightly too, that the decision to discharge the Petitioners along with others was arrived at by the Government of Assam. It was communicated to the Heads of the Departments and they were directed to give effect to it. The decision was not under the ordinary rules of service. A right of appeal would be available in cases where dismissal, removal or reduction is ordered as a penalty under the rules. Here, it is not the case of the Government that there was removal from service under any of the rules governing the conditions of service. The documentary evidence clearly shows the reasons for the removal.

Where there is removal by Government itself as a result of repeated Cabinet decisions based on ground of policy, there would be right of appeal. The right of appeal is available from decisions under the rules in individual cases and not against policy decision affecting employees in different departments who had to be discharged, as no vacancies by migrations to Pakistan came into existence. It is extremely doubtful if a Constitutional head of the State could reverse the decision of the Government under the ordinary rules of service. If therefore the right: of appeal existed, it could not, in the circumstances of the case, be regarded as an adequate remedy. It was merely illusory. The Petitioners have also been representing to the State Government and to the Government of India after the orders of discharge till after the Constitution came into force. It is not a case in which there was no demand for justice.

The remedy by suit cannot at all be regarded as appropriate. The Petitioners are migrants from Pakistan; they have come away as a result of the country having been divided into two Dominions. They were treated as Government servants and were put on ex-gratia leave for some months.

In April, 1948, they got their orders of discharge. They did not rush to the Civil Court but tried to obtain relief by representations. They had not instituted any suits till the Constitution came into force. The remedy by suit had its obvious difficulties. It meant litigation with the Government of Assam for a number of years. The case would have gone through the usual stages. This litigation was bound to be expensive and hazardous. They would have had to wait for years to obtain relief.

Forcing them to the ordinary remedy by suit may well amount to a denial of justice. These cases have their peculiar features and redress may not be refused on the ground on the mere existence of an alternative remedy. The facts in the East Punjab case were very different. The Petitioner there had put in 29 years of service and was due to retire in July 1952. He was removed from service on 17-11-51. His original petition -was put in on 22-11-51. A supplementary petition was put in on 22-4-52. It would appear that he had only few months of service when he filed the petition, and this period too had expired before the petition came up for hearing. There was no urgency in the matter. If the order of dismissal affected his right to pension, he could have instituted a suit. The alternative remedy in that case could be regarded as adequate.

The question whether a Petitioner should be. forced to pursue an alternative remedy, depends on the circumstances of the case land as observed above, the Petitioners in this case are in an extremely difficult predicament. The decision in -- ''G.C. Bezbarua v. State of Assam'' AIR 1954 Gau 161(R) does not lay down any rule of general application. On the facts of that case, it was held that the remedy by appeal was avail-ble, and as it had not been availed of without any justification, the Petitioner could not be permitted to invoke the extraordinary jurisdiction of the Court, under Article 226 of the Constitution of India.

It has next been argued that the Petitioners held their posts under the Crown during His Majesty''s pleasure u/s 240(1), Government of India Act; 1935. That being so, no writ in the nature of mandamus could issue. That was the view taken in a Division Bench decision reported in -- ''AIR 1952 Mad 105. (Q) It was observed in that case that

as there is no statutory obligation on the State to retain the Petitioner in the service, an order in the nature of a mandamus cannot clearly be issued to the State to re-instate him. A mandamus cannot be issued to compel an appointment in the office held at pleasure.

Reliance was placed on -- ''Reg v. Bodmin Corporation'' 1892 2 QB 21(S) in support of this proposition. The learned Judge went further and observed that

even if it is assumed that in the termination of the Petitioner''s services, Article 311(2) of the Constitution, had not been complied with, on that ground alone the High Court would not be justified in giving to the Applicant the remedy by a mandamus. For a mandamus is not granted unless it Cleary appears that it will be effectual. If the State had sufficient cause to remove the Petitioner from service, it would, undoubtedly, remove him again after complying with the provisions of Article 311(2); if the Court orders the State by mandamus to reinstate him in the office the State would render the order in the nature of a mandamus inoperative. The Petitioner cannot clearly be granted a mandamus to set aside the order of the Government terminating his services, though the order may be illegal. A mandamus does not lie for declaring that an act of a person or an authority is illegal and ultra vires. It only lies to compel public officials or bodies to carry out their statutory duties.

The ratio of the decision obviously was that the office was held at pleasure and any writ in the nature of mandamus, if issued, would not be effectual. It would easily be made inoperative.

With profound respect to the learned Judge, I have found it difficult to subscribe to this view for reasons which I give below. The Petitioners were removed from service in 1948. At that time, Section 240, Government of India Act, 1935, while pro-viding that their service was at plesaure guaranteed against capricious and arbitrary dismissal or reduction by providing that they could not be dismissed, or reduced in rank by any authority subordinate to that by which they were appointed land until they were given a reasonable opportunity of showing cause against the action proposed to be taken in regard to them.

Therefore, though they held office at the pleasure of the Government, they could be removed only after due compliance with the procedure contained in Section 240, Government of India Act, 1935. A contravention of the clause which provides for a reasonable opportunity of showing cause against the action proposed, would make the order illegal. The direction is mandatory. It was held so in -- AIR 1948 121 (Privy Council) .'' and that view still holds the field. It follows, therefore, that a post, appointment or office held by a Government servant at Government''s pleasure is not so precarious as it might have been if the provision contained in Section 240(1) had not been qualified by the mandatory directions contained in Sub-Sections (2) and (3) of Section 240.

Section 240 came up for consideration in -- The State of Bihar Vs. Abdul Majid, Mahajan C.J. delivered the judgment of the Court. With regard to the rule that a Civil servant holds office at the pleasure of the Crown, the learned Chief Justice observed that.

the rule of English law that civil servants hold office at the pleasure of the Crown has not been fully adopted in Section 240. Section 240 itself places restrictions and limitations on the exercise of that pleasure and those restrictions must be given effect to. They are imperative and mandatory. It follows, therefore, that whenever there is a breach of restrictions imposed by the statute, by the Government or the Crown, the matter is justiciable and the party aggrieved is entitled to suitable relief at the hands of the Court. As pointed out earlier in this judgment, there is no warrant for the proposition that the relief must be limited to the declaration and cannot go beyond it. To the extent that the rule that Government servants hold office during pleasure has been departed from by the statute, the Government servants are entitled to relief like any other person under the ordinary law, and that relief, therefore, must be regulated by the Code of the Civil Procedure.

Dealing with the origin of the English rule, the learned Chief Justice observed that "the rule of English law that the Crown cannot be sued by a civil servant for money or salary or for compensation, had its origin in the feudal theory that the Crown cannot be sued by its vassals or subjects in its own Courts.'' From this theory, the Common Law Lawyers in England deduced two rules, namely, (1) that the King can do no wrong, and (2) that as a matter of procedure, no action can lie in the King''s Courts against the Crown. In India, from the earliest times, the mode of procedure, to proceed against the Crown has been laid down in the CPC and the procedure of Petition of Right was never adopted in this country, and the same seems to have been the rule in Australia and other colonies." In -- ''Lilawati''s case (Q)'', the view which prevailed was. that the provisions in Article 310 that service is at pleasure is not qualified by the provision relating to procedure contained in Article 311 The view is negatived by the Supreme Court decision. But the decision in -- ''Lilawati''s case (Q)'' is on the basis that the State could not be ordered to re-instate the Petitioner in the former post as the post was held at the pleasure of the Government. The decision relies on the English rule which was applied in -- ''1892 2 QB 21(S)'' But that rule was not adopted in its entirety either in the Government of India Act, 1935, or in the Constitution of India. We have statutory provisions to guide us.

The English rule with all its implications is not applicable. The decisions given under that rule would not be safe guides. The position has-been made clear by the Supreme Court decision; which clearly lays down in the case of any contravention of the provisions contained in Section 240, the matter is justiciable. Reliefs permissible by law may be claimed in the Courts of the country and relief that is suitable may be granted. It was expressly stated that the relief need not be limited to a declaration only. It may go beyond it. Relief by way of declaration pure and simple also may be thus claimed and granted. Declaratory relief was granted to I.M. Lall in -- AIR 1948 121 (Privy Council) In -- ''Punjab Province v. Tarachand'' AIR 1947 FC 23(U) also, it was declared that the Plaintiff had been wrongfully dismissed.

The powers of the High Court under Article 226 are very wide. If declaratory relief can be given by a Civil Court in a suit, it could also be given under Article 226. An order in excess of jurisdiction or which is apparently illegal by reason of the obvious contravention of Section 240(2) could be set aside and a direction in the nature of mandamus: to the effect that the order was not to be given effect to could issue. The pleasure theory won''t stand in the way. It is quite possible that the Government may again remove the person concerned after complying with the provisions contained in Section 240 if there is justification for his removal under the rules. But that cannot be any reason why relief even in the nature of mandamus should be refused, for the period, during which a Government employee cannot be construed to have been removed effectively by reason of the order of removal being manifestly illegal.

In the first place, it would not be correct to speculate about the result of the proceeding to be initiated and conducted in conformity with the requirements of procedure laid down in Section 240; in the second place, the cancellation of the illegal order would involve automatically a reinstatement which confers a valuable right for a certain period. The State cannot dismiss its servants. With retrospective effect. The result of setting aside an illegal order of dismissal or removal would be that the person concerned would continue in service till he is validly dismissed or removed. That is a valuable right and there is nothing in Section 240 which would stand in the way of the Court granting this relief. The benefit" of such an order cannot be taken away by any valid subsequent removal from service and the mandamus cannot be rendered inoperative. ''Lilawati''s case (Q)'' militates against the view which prevailed in the Supreme Court -- The State of Bihar Vs. Abdul Majid, . It has therefore lost its value as a precedent.

51-A. On the principle of the Supreme Court decision -- The State of Bihar Vs. Abdul Majid, the right of the Government to remove or dismiss its employees at pleasure is curtailed whenever statutory limitations are placed on it. A discharge from service in contravention of the provision contained in the Independence Act would give the aggrieved party the right to claim relief from courts of law. The contravention would be similar in effect to a contravention of Section 240, Government of India Act.

Dixit J. also held that an order terminating the services of a Government servant is an administrative order, and not a quasi-judicial order. The matter is not free from difficulty but it is not necessary to go into the question, for even if such orders are treated as administrative orders, the High Courts have ample powers under Article 226 of the Constitution to quash or review such administrative orders under certain circumstances in order to safeguard the rights of citizens. The contention was raised in -- ''Lila-wati''s case (Q)''.

Dixit J. observed that the contention is to a certain extent supported by the decision of the Bombay High Court in -- Emperor Vs. Jeshingbhai Ishwarlal, In this case, it was held that

under Article 226, High Courts had jurisdiction to issue orders against even an executive officer who issued an administrative order in order to safeguard the fundamental rights of a citizen although a writ of certiorari could not be granted to correct such administrative order.

The learned Judge added that

the Court will, of its own motion, put limitations upon its own powers under Article 226(1) and that it will not exercise this power in a matter which it cannot deal with judicially, nor would it take notice of anything which it cannot take notice of judicially, nor would it interfere with the action of an executive officer unless it is satisfied that the executive officer is under an obligation to do something or forbear from doing something.

The learned Judge (Dixit J.) did not differ from this view though his conclusion was that the decision referred to by him on this point could not be regarded as laying down any proposition that whenever a purely administrative order interferes with the rights of a citizen the High Court should in every case make an appropriate-order under Article 226 to redress the wrong and injustice done to the citizen. I agree that it is not necessary to go so far.

Relief cannot be claimed as of right. It is in the discretion of the Court. The High Courts are not bound to issue any writs or orders. Parties invoking the Court''s extraordinary jurisdiction are not entitled to writs as of right even where any illegal administrative order interferes with their rights. It certainly cannot be laid down as a rule of general application that in every case, the Court should interfere. But the principle remains that the Court has power to interfere even with illegal administrative orders when they affect the rights, fundamental or otherwise, of a citizen of the state. Therefore, even if an order is treated as administrative, if its illegality is apparent and if it affects valuable rights, and thus leads to a failure or miscarriage of justice, the power of the Court to interfere with the order is there even according to the decision in ''Lilawati''s case (Q)''. In this view of the matter, it is not necessary to consider whether a certiorari would lie or not.

Lastly, it is argued by the learned Government Advocate that under Article 226, no relief can be given which will be in the nature of a declaration. In support of this proposition, he has relied upon Naubat Rai Vs. Union of India (UOI) and Another, and also on certain observations contained in ''Lila-wati''s case (Q)''. It appears that Kapur J. relied on the decision in -- Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, in laying down the above rule. It was observed in ''Charanjitlal''s case (W)'' that

a proceeding under this Article (Article 226) cannot really have any affinity to what is known as a declaratory suit. The first prayer made in the petition seeks relief in the nature of a declaration that the Act is invalid and is apparently inappropriate to an application under Article 32.

I find it difficult to hold on the basis of these remarks that under no circumstances relief in? the nature of a declaration may be given under Article 226 of the Constitution. In a declaratory suit u/s 42, Specific Relief Act, a Plaintiff who is in enjoyment of his '' rights may ask merely for a declaration of a right to property or to any legal character. It is open to him to ask for such a declaration where it is not necessary for him to ask for any consequential relief. A declaration that a certain Act is invalid cannot be asked for even u/s 42, Specific Relief Act. No one has the right to ask for a declaration about the invalidity of Acts unless-rights to property or legal character are affected. A declaration about the invalidity of an Act alone may not be allowed under Article 226 of the Constitution. Declaration pure and simple permissible u/s 42, Specific Relief Act, may not be granted under Article 226 for the obvious reason that any cloud cast on Plaintiff''s title-to property or legal character of which he is in enjoyment can be appropriately removed as-the result of a suit. Article 226 is not to be allowed as a substitute for declaratory suit. But it does not follow that no kind of declarations can be given by way of relief under Article 226. The jurisdiction of the High Court under Article 226 is comprehensive enough to include powers which Civil Courts can exercise. Declarations can be given by the Civil Courts only in respect of certain rights and under certain conditions. Article 226 does not impose any restrictions on High Courts in the matter of reliefs. It leaves the power conferred on High Courts completely unfettered. If a declaration is a suitable relief in the circumstances of a given case, I do not see why High Court should be completely precluded from granting it under Article 226.

The rule laid down by Kapur J. may have its value on grounds of caution, but with profound respect to him, I do not see how it can be laid down as a matter of law that a relief by way of declaration which may be granted by Civil Courts cannot be granted under Article 226 by the High Courts. The power is not limited to the issue of unusual prerogative writs; other orders and directions can issue. These can be issued for the enforcement of fundamental rights and other purposes. It is not necessary to pronounce finally on the question for the purposes of this case for reasons given below but if it had been necessary to give a decision on the point, I would have found it difficult to subscribe to the proposition enunciated by Kapur J. in Naubat Rai Vs. Union of India (UOI) and Another, and by Dixit J. in AIR 1952 Mad 105(Q).

The relief claimed in these cases is for a declaration that the impugned orders are illegal and that the State of Assam be prohibited from enforcing the orders of discharge. I do not think this is a mere declaratory relief. If the relief prayed for is granted, the order would be in the nature of a writ of mandamus. Not only would the impugned orders be declared illegal but that the State of Assam shall be prevented from giving effect to those orders. The result would be an automatic re-instatement of the Petitioners till such time that they are removed from service in accordance with law. It does not seem to me appropriate to describe the relief in these terms as purely declaratory.

Similar relief was allowed in -- Brajnandan Sharma Vs. The State of Bihar, It was a case under the Bihar Maintenance of Public Order Act restricting the movement of a free citizen. Meredith C. J., in conformity with the majority judgment, gave the following relief:

I hold accordingly that Section 2(1)(b) of the Act became void on the 26th of January, and it necessarily follows that the order made under that provision became void. I would accordingly give the Petitioner a declaration to that effect.

Das J. who gave a concurrent judgment passed the order in the following terms:

In view of the very wide terms of that Article (226), I think that the Petitioner is entitled to ask us for an order against the State Government prohibiting that Government from enforcing the order which must be declared to be void after 26-1-1950.

I think what the Petitioners are seeking is an order in the nature of an order passed by Das J. in the Patna case and I do not think there is anything in Article 226 which stands in the way of the Court granting this relief.

My Lord the Chief Justice has come to the conclusion that the impugned orders are illegal and unauthorised. He has, therefore, directed that those orders shall not be given effect to and the Petitioners shall be deemed to have continued to be members of the Assam Educational Service, Grade II, with all the rights incidents and privileges attaching to that service and according to the condition governing the same.

The order is permissible and appropriate and I entirely agree to its terms.

Deka, J.

54a. These are two applications under Article 226 of the Constitution for an appropriate writ for cancellation in effect of an order of the Assam Government dispensing with the services of the Petitioners with effect from 1-4-1948, under circumstances described in the petitions. The case of Hiranmoy Bhattacharjee was argued in details and I am taking that matter first for consideration.

Pacts of the case lie within a short compass. Petitioner Hiranmoy Bhattacharjee, a man from Sylhet District which originally formed a part of the province of Assam was appointed as Assistant Teacher in the Assam School Service with effect from 12-11-1934 and in December 1943, he was appointed an Assistant Lecturer to Sanskrit and Bengali in Assam Educational Service, Class III, and was placed on the staff of the Murarichand College in the Sylhet District and in July 1945, he was appointed an Assistant Lecturer in Bengali -- but on 19-2-47, the Class III service being amalgamated with Class II service, he was raised to Class II of the Assam Educational Service with a starting pay of Rs. 195/- per month and he continued as a lecturer in Bengali in the Murarichand College,

In the first week of July 1947, the Petitioner received a letter from Shillong, dated 25-6-1947 over the signature of the then Chief Secretary of Assam Sir Harold Dennehy, together with a questionnaire to be filled by the Petitioner, as by all other Gazetted Government officers, due to the impending partition of India, intimating their option as to whether the particular officer would elect to serve in Pakistan or in the ''rest of India''. As much of the arguments have been based on this letter, marked Annexure A, I prefer to quote it below along with the questionnaire.

GOVERNMENT OF ASSAM. HOME DEPARTMENT.

Branch -- Confidential.

No. C. 175/47/20, Dated Shillong, 25-6-1947.

From: Sir Harold Dennehy, E.S.I., C.I.E., I.C.S. Chief Secretary to the Government of Assam.

To:-- All Gazetted Officers of the Government of Assam.

Sir,

I am directed to say that in view of the partition of India and the formation of the Government of Pakistan and ''Rest of India'' in the near future, the Special Committee of Partition Office, Government of India, New Delhi, appointed to work out the machinery for implementing; the partition of India has decided as follows:

(1) Every Government servant, Indian or European, should be given an opportunity to select the Government he wishes to serve.

(2) Each Government servant should be asked to state at the same time whether he wishes to be given an opportunity to reconsider his choice within a period of six months from the date of the transfer of power.

I am to request the favour of your furnishing Government with your replies within one week of receipt of this letter to the attached questionnaire in your own handwriting.

I am to make it clear to you that the representatives of the two future Governments mentioned above guarantee your existing terms and conditions of service.

Your obedient servant. Sd/- H.G. Dennehy, Chief Secretary to the Govt. of Assam.

QUESTIONNAIRE.

(All answers to be in Block letters).

Name (in full):

Service and/or Department:

Substantive appointment:

Present appointment:

(Answers to all the questions asked below should toe in a simple affirmative or negative).

(All Government servants are assured that their existing terms and conditions of service are guaranteed by the representatives of both the future Governments.)

Do you elect to serve in Pakistan?

Do you elect to serve in the rest of India?

Is your choice final?

Is your choice provisional?

Note-- If your choice is provisional, you will have an opportunity to reconsider and indicate your final choice within a period of six months from the date of transfer of power. The provisional choice will not in any way prejudice your seniority or other conditions of service.

(Signature) (Signature of Attesting Officer).

Place. Date.

The Petitioner claimed to have opted for the rest of India. As a result of the referendum held on the 6th and 7th July, 1947, as provided under the Indian Independence Act, Section 3, the District of Sylhet except a small slice thereof went over to Pakistan with effect from 15-8-1947.

The Petitioner ascribed mala fides to the Government of Assam and alleged that by the 14th August, the Government of Assam withdrew from the Sylhet District all their employees who were natives of Assam but left over those employees who were of Sylhet origin or of other Bengal Districts, even though some of them opted for the rest of India. On 1-9-1947, the Petitioner and other employees opting for India got a notice from the East Bengal Government to quit their jobs and were actually relieved. The Petitioner claims to have left Pakistan in the third week of September 1949 and removed to the Indian Union with his family where he still resides.

The Petitioner wrote to the Chief Secretary, Assam, and to the Member, Steering Committee on 1-9-47, requesting for orders for posting but contrary to his expectations, he was kept on ex gratia leave on half average pay by the Assam Government from 1-9-1947 to 31-3-1948. By the first week of May, 1948, the Petitioner received a letter from the office of the Director of Public Instruction over the signature of the Assistant Director of Public Instruction, Assam, dated 21-4-48 intimating that the Petitioner''s services were dispensed with on and from 1-4-1948 due to the transfer of a major portion of the Sylhet District with its institutions to East Bengal and purporting to give him three months'' notice of discharge with effect from 1-1-48.

The Petitioner sent a memorial to the Chief Secretary against this order of dismissal, on 20-5-48, through the D.P.I. Assam but he was intimated by another letter from the Assistant Director of Public Instruction dated 31-8-1948 that the Government had not been able to procure any suitable vacancy for him and he was directed to submit his application for pension or gratuity as the case may be and he submitted his pension papers on 23-3-49 in obedience to this order. He however states to have remarked on the form of application for pension that pension was applied for with objection and with reservation of his full right to take necessary steps for the recovery of damages due to the premature termination of his services (vide paragraph 19 of the petition).

The Government of Assam by its letter, dated 3-4-50 informed the Petitioner that he has been sanctioned a compensation pension of Rs. 30/9/- per month with effect from 1-4-48, but he refused to accept the said pension and with other displaced persons and unabsorbed officials made several representations to the Governments of Assam and also to the Government of India (Ministry of Home Affiairs). They also secured an interview with the Prime Minister of India and a letter from his Assistant Private Secretary dated 3-3-49 saying that their case was being forwarded to the Ministry of Home Affiairs, New Delhi, for appropriate action.

One Mr. D.C. Datta is alleged to have interviewed and moved the Government of Assam on behalf of the Displaced employees of the Assam Government on 30-6-49 and had correspondence, the last communication on the subject being on 15-5-50.

The Petitioner states that his date of superannuation was 15-6-65 and he would be eligible to continue in service till then, but for the illegal discharge order of 21-4-1948, and he puts his loss of pay at Rs. 78,202/- and loss in pension at Rs. 39,420/- and the total loss at Rs. 1,17,622/-. The Petitioner not only ascribed mala fide to the Assam Government but also alleged that the discrimination in absorbing only the Assam born citizens amounted to a violation of the fundamental rights of the Petitioner under Articles 14, 15(1) read with Article 16(2) of the Constitution of India and had tried to support the same by quoting some extracts from the decision of the Assam Cabinet.

The Petitioner further alleged that his forced retirement was in violation of the guarantee given by the Chief Secretary''s letter forwarding the so-called ''option paper'' and at any event, the order of discharge was in violation of the Pension Rule No. 72 of the Assam Pension Manual. The Petitioner on these allegations prayed for issue of a writ of certiorari, mandamus, prohibition, etc., on the State of Assam and the Director of Public Instruction, Assam, directing quashing of the order of discharge dated 21-4-48 and for pension, the Petitioner was entitled to be posted in Class II of the Assam Educational Service or to similar service carrying the same privileges and emoluments and for a direction that the Petitioner is entitled to all outstanding dues on account of pay and allowances from 1-9-47 till this date on the scale he was on 14-8-1947, and for some other incidental reliefs.

This rule was obtained by the Petitioner on 14-5-51. As a measure of compromise, the post of a Lecturer in Sanskrit was offered to the, Petitioner by the Assam Government in the Cotton College, Gauhati, the only Government College in the province, in September, 1953 but the Petitioner declined to accept it unless the terms and conditions of his previous post and the continuity of his service were admitted by the Government of Assam.

In the affidavit in opposition, he raised a further ground that the order of discharge transmitted to him by the Assistant Director of Public Instruction was void and inoperative as it contravened the provisions of the Government of India Act, 1935.

The Government of Assam opposed the rule on several grounds and denied some of the allegations of fact. The objections may be shortly summarised as follows;

(1) That the Assam Government was under no legal obligation to retain the services of the Petitioner after the separation of Sylhet and no guarantee was given to him to that effect by the Chief Secretary''s letter who only circulated the decision of the Special Committee of the Partition Office, Government of India, under the instruction of India Government as admitted by the Petitioner himelf.

(2) That the matter cannot be adjudicated without making the Government of India a party as it was their decision which influenced the Petitioner to make a choice for the rest of India.

(3) That it was only out of sympathetic consideration that the Petitioner was granted a pension and that could not have foisted a legal obligation on the Assam Government to retain the Petitioner in service; as he was found to be a surplus hand and there was no corresponding vacancy where he could be absorbed, he was therefore retrenched and pensioned off as provided under the Assam Pension Rules.

(4) That the Government deny the mala fide ascribed to them and the alleged discrimination but assert that transfers were made of some of the officers on the ground of administrative necessity, and for the best interest of the citizens of Assam. They further deny that the order of discharge was passed by the Assistant Director of Public Instruction as alleged but he simply communicated the Assam Government''s decision in the matter.

(5) That the Government denied that the Petitioner was a citizen of India or that he had any right to be reinstated to the post which he held at the pleasure of the Government.

(6) That the application for writs was incompetent as it related to alleged violation of fundamental rights that took place before the

(7) That in any event there were alternate remedies that the Petitioner did not take recourse to and this Court should not exercise its powers under Article 226 of the Constitution to give relief in such cases where adequate remedy is available by way of an appeal to the Governor under the Civil Sex-vices (Classification, Control and Appeal) Rules or by a regular suit in the civil court of the country and the case of inordinate delay is another factor that should be considered and the absence of bona fides of the Petitioner.

(8) That a mere declaratory relief that the removal of the Applicant from service was illegal cannot be given under Article 226.

Broadly speaking, the Petitioner''s case was that the Assam Government was under a legal obligation to retain him in service even after the partition of the country because of allowing him to exercise his option as to where he would serve, secondly, there was mala fide in the matter of not absorbing him in the service after partition & thirdly, there was unreasonable discrimination in pensioning him off even though persons junior to-him were retained in office.

In my opinion, none of these contentions have any substance nor can the petition succeed on any of these grounds. The Chief Secretary''s letter which has been quoted above does not give any indication whatsoever that the Assam Government undertook any responsibility for providing the officer with any job if he elected to serve in the rest of India. The letter discloses in the opening paragraph that the communication was addressed as a result of the decision of the Special Committee of the Partition Office, Government of India, appointed to work out the machinery for implementing the partition of India and in paragraph 3 of the said letter, it was made clear that the representatives of the two future Governments (meaning India and Pakistan) guaranteed the existing terms and conditions of service. The Provincial Government had no say in the matter, nor was any assurance given on behalf of the Provincial Government nor any inkling given that they would retain their jobs in the Province in some shape or another. The Chief Secretary only circulated the decision of the Partition Committee which was appointed by the representatives of the two future Dominions and asked for a reply in those terms. If the Petitioner wants to say that because of this exercise of option as was requested by the letter of the Chief Secretary that he was relieved of his job in the Murarichand College (which went to Pakistan) by the successor Government that is, the East Bengal Government, he might sue the Chief Secretary or the Assam Government for damage but cannot say that there was a legal obligation to absorb him in some of the Government Offices in Assam or in Educational Service of Assam Government and can in no way ask for a writ to have him so absorbed irrespective of any vacancy in the said province.

It can easily be assumed that similar letters or circulars were issued to the Provincial employees of the Sind Government, and there were undoubtedly some who opted for the rest of India. On which Provincial Government does the responsibility lie to provide them with a suitable job? Surely the responsibility, if any, is of the Central Government. The Petitioner too realised this long ago and contacted the Prime Minister of India and made attempts to get relief through the Home Affiairs Office of New Delhi along with other displaced officials of the Provincial Government from that part of the province now ceded to Pakistan. It is therefore clear that the Petitioner brought this claim against the province of Assam on a speculative basis after failing to obtain any relief from the Government of India. He shows no reason why he gave up his demands against the India Government or did not think it fit to make it a party. In my opinion, this was a matter that ought to have been decided in the presence of the India Government as a party. The proper parties not being before us, it is another reason why this petition should fail. The Petitioner failed to prove that the Provincial Government incurred any liability to absorb him in the service because of the circulation of the Government of India''s decision or for calling for the option paper'' under its instruction. Whether there was any contractual liability or a case for damages, does not come up for consideration in this matter.

Our attention has been drawn to Clause 7, India (Provisional Constitution) Order, 1947, on which the Petitioner relied and Sub-clause (1) which is material runs as follows:

Subject to any general or special orders or arrangements affecting his case, any person who immediately before the appointed day is holding any civil post under the Crown in connection with the affairs of the Governor-General or Governor-General in Council or of a Province other than Bengal or the Punjab shall as from that day, be deemed to have been duly appointed to the corresponding post under the Crown in connection with the affairs of the Dominion of India or, as the case may be, of the Province.

Now, what would be the ''corresponding post'' for the Petitioner after the appointed day? The word ''corresponding'' is shown to mean "answering to similar description, analogous" in the Webster''s Dictionary. The Petitioner was a Lecturer in Bengali in the Murarichand College on 14-8-1947, so is he on the 15th August, or thereafter and the Pakistan (Provisional Constitution) Order, 1947, Clause 7, would support that view. There could be no corresponding post of a Lecturer in Bengali in the Murarichand College in the province of Assam (reconstituted) or in the ether Government College in Assam which might or might not have a Lecturer in Bengali, and even if it had, there was some incumbent there from before and the Petitioner could not be super-imposed. It was not the Petitioner''s case that there was corresponding vacancy in the other college or that it was newly filled up with some other person.

There is another way of looking at the thing. When we examine Section 9(6) of the Indian Independence Act, 1947, we find that the said Act anticipated redistribution of territory between Assam and the Province of East Bengal. The India (Provisional Constitution) Order itself came into existence by virtue of Section 9(1) of the Indian Independence Act along with other relevant provisions of this Act, and Section 9(6) says that

the preceding provisions of this section shall have effect, as if, under this Act the Province of Assam was to cease to exist on the appointed day and be reconstituted on that day as a new Province.

Therefore, that part of the Indian territory where the Murarichand College was situated ceased to form a part of the Province of Assam vide Clause 5(3) of the Indian Independence (Rights, Property and Liabilities) Order, 1947, from 15-8-1947 and Clause 7 of the India (Provisional Constitution) Order ceased to have any operation so far as that part of the Sylhet District was - concerned. The Petitioner under that clause therefore could not ask for a corresponding post in the Province of Assam newly constituted. If his contention were to prevail, every Government post in Sylhet had to be made a liability of the Assam Province which is absurd and not contemplated by any of the statutes and that would militate against the provisions of Clause 7 of the Pakistan (Provisional Constitution) Order, 1947.

By virtue of Clause 7(1) of the India (Provisional Constitution) Order, therefore, the Petitioner could not claim to hold his post as such as an employee of the Assam Government because of the special condition prevailing in the Province of Assam due to separation of Sylhet, along with its Government institutions.

The learned Advocate for the Petitioner contended that the Petitioner retained his post ha the cadre.'' That is nobody''s case nor is it supported by the wordings of Clause 7(1). The Government is the best judge as to what should be the strength of any cadre in any particular circumstances and it is not for the High Court to go into such matters or advise the Government as to its policy of administration in a petition under Article 226. Admittedly, there being no ''corresponding post'' for the Petitioner in the Province of Assam as contemplated under Clause 7 of the India (Provisional Constitution) Order, his contention of retaining that office, therefore, cannot be accepted, nor can he be reinstated to that post by the Assam Government and this Court will not give a direction or a declaration that cannot be given effect to.

The next question is one of mala fides on the part of the Assam Government. The Petitioner alleged that the Assam Government removed prior to 14-8-1947, the Government employees of Assam origin in preference to those of Bengal origin of which the Petitioner claims to be one and the Government''s case is that they did what they considered to be an act of administrative necessity. The allegation is one of fact and it is disputed.

There has been a number of decisions on this point of various High Courts including this Court to the effect that the High Court should not go into disputed facts to ascertain which version is correct in an application under Article 226 of the Constitution. In -- Subodh Ranjan Vs. Major N.A. O''Callaghan and Another, Bose J., has expressed a similar opinion. In Naubat Rai Vs. Union of India (UOI) and Another, Kapur and Soni JJ., have given Vent to similar opinion and observed that when the facts are disputed, the High Court would not exercise its jurisdiction under Article 226.

Whether the Petitioner is a citizen of India is another disputed matter. It is clear that he does not live within the province but he claims to reside in the Indian Dominion and fights for his rights as such. He alleges that there was illegal discrimination against him owing to his place of birth and the Government disputes the charge. His contention is that his case comes under Articles 14, 15(1) read with Article 16 of the Constitution. Article 14 deals with equality before the law or the equal protection of the laws within the territory of India.

Article 15(1) says that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them, & Article 16 provides in Clause (2) that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

Article 16 is a sort of corollary to Article 15(1). There was no case of discrimination with regard to an employment because there was no fresh employment, the Petitioner being in the service from before nor did he ask for any fresh employment.

As regards the applicability of Article 14, there are two fold answers, first, that it had no retrospective operation, and was not in existence at the material period to which the contention applies, secondly, it could not be said that there was illegal discrimination simply because one individual or a class of individual were left out when some others were taken away from the Sylhet District provided the classification was not arbitrary and it rested upon some real and substantial distinction bearing a reasonable and just relation to the things in respect of which the classification was made.

The Petitioner''s case is that officers of the Assam origin were taken back to Assam Province when it was newly constituted as a result of the referendum, to the exclusion of officers of Sylhet of Bengal origin and this was a Government policy as alleged by the Petitioner. This was surely for the best interest of the State and in support of the public policy and there is nothing to suggest that it was arbitrary and unreasonable. The action of the Government, even if true, cannot be said to be so discriminatory as to be hit by Article 14.

A similar point came up for consideration in -- Kewal Mal Singhi Vs. Heta Ram and Others, where the Petitioner moved against the order of retirement passed on him by the State Government in pursuance of a policy adopted by the said Government to the effect that Government servants who had completed 55 years of age or 30 years'' qualifying service on 1-5-1949 were to be retired and the Petitioner''s case was that the order was discriminatory. The Court held that reasonable classification is permissible and what is prohibited is arbitrary selection or discrimination within the class and so long there is no discrimination within the class, the rule is not, hit by Article 14 of the Constitution.

The other important point for consideration is whether an application under Article 226 is the proper remedy or the Petitioner. The learned Government, Advocate has laid great, stress on this point and he cited several rulings in support of this contention. In ''AIR 1953 P&H 137 (O)'' several of the points pertinent to this case were considered. The Petitioner in that case was an ex-employee of the India Government who moved the High Court for an appropriate writ to be issued against the order of his removal from service. There also identical points were raised on behalf of the Government.

While considering whether Article 226 was the proper remedy in such cases, the Court held after discussing the law on the subject that it was not Kapur J. observed while considering the objection that there was an equally efficacious remedy by way of suit:

I hold that there was in this case open to the Petitioner a right of appeal under the Civil Service Rules and he had an equally efficacious remedy to enforce his rights by a suit, and the remedy by way of writ was not open to him.

Soni J. who added a short separate judgment observed:

The first part of the prayer is for purely declaratory reliefs. It involves questions which for their proper disposal can only be decided in a regular trial in one of the ordinary constituted Courts of the land. ...Moreover, no employer can be compelled to retain an employee in service. For improper dismissal the aggrieved employee''s remedy appears to me to be a suit for damages.

In ''AIR 1952 Mad 105 (Q)'' the Petitioner Lilawati Mutatkar moved the High Court for a writ against the order of the Chief Secretary to the Madhya Bharat dated 18-11-50 terminating her services and it was held therein that as the Petitioner held her employment at the pleasure of the Rajpramukh, there was no statutory obligation on the State to retain the Petitioner in the service and an order in the nature of mandamus cannot clearly be issued to reinstate her.

Strictly speaking, a mandamus cannot be issued to compel an appointment in the office held at pleasure and this view was held on the authority of 1892 2 QB 21(S). It was further held in that case that an order terminating the service of as civil servant could not be quashed on certiorari and that no other form of remedy under Article 226 could be granted for the purpose of reviewing or avoiding the order of termination of his services, nor could a mere declaratory relief be given under the said Article.

It was observed in that case that all services under the State being public services and for the public benefit, in making a decision, about the removal, dismissal, or reduction of a Civil servant the authority must obviously be guided by its own views as to what is expedient in the interests of the State and the service.

A similar view was held to -- Carlsbad Mineral Water Mfg. Co. Ltd. Vs. H.M. Jagtiani, and it was observed by the learned Judge that Court will as a general rule and in the exercise of its discretion refuse a writ of mandamus when there is an alternate specific remedy at law which is not less convenient, beneficial and effective.

In ''AIR 1954 Gau 161(R)'' it was held by this Court that when there is a remedy by way of appeal under the statute, no relief can be given and a similar view was held in ''AIR 1954 Gau 152 (F)''. Here in this case, it was admitted that there was no appeal under the Civil Service (Classification, Control and Appeal) Rules which provides under Rule 57(5) to a member of a Provincial Service a right of appeal to the Governor against an order of the Local Government. This remedy was available to the Petitioner when his services were dispensed with but he did not take recourse to this remedy.

In the light of the decisions stated above, inclusive of the decisions of this Court, I am inclined to hold that no relief could be given to the Petitioner under Article 226 of the Constitution inasmuch as he neither filed an appeal to the Governor nor was he prompt in taking necessary measures for redress. There are some decisions on the point that even delay would deprive the Petitioner of the remedies under Article 226 of the Constitution. In any view, the Petitioner can ask for remedies in a Civil Court which is a proper forum as observed by Soni J. in Naubat Rai Vs. Union of India (UOI) and Another, In -- Mahboob Khan Vs. Deputy Commissioner and Others, this Court held that no writ of mandamus should issue unless the circumstances are such that referring the Petitioner to seek the remedy in a Civil Court would almost make the result nugatory and the relief delayed beyond measure and that breach of contractual obligations will always give a chance to the party to seek relief in Civil Courts and the petition under Article 226 is not a fit vehicle for seeking redress.

In this case, even it be contended that the Chief Secretary''s letter gave certain contractual rights to the Petitioner to be absorbed in the Assam Educational Service after the partition, this decision would indicate that his remedy is by way of the suit and not by an application under Article 226 of the Constitution.

To summarise the decision on this point, I can only quote with respect the observation of Chandrasekhara Aiyar J. in the case'' of -- Veerappa Pillai Vs. Raman and Raman Ltd. and Others, which was a judgment in an appeal from the decision of the Madras High Court disposing of the petition under Article 226:

Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made.

One of the main contentions on behalf of the State is that no relief could be given under Article 226 of the Constitution to the Petitioner as the order by which the Petitioner was aggrieved was passed on 21-4-48 if not on 1-4-48, long before the Constitution came into force. It is a fact that all other orders or correspondence were merely incidental. There is no substance whatsover in saying that the quantum of pension was fixed some time in April 1950 or that the displaced officers'' representative Mr. D.C. Datta has the last correspondence from" the Government of Assam in May 1950.

If such an excuse is allowed to hold the ground, there will be no limit to such pretences. The relief asked for is to vacate the order of the Government or of the Education Department passed on 21-4-48 and not the order for pension that followed on the basis of retrenchment of the particular officer.

There have been authoritative pronouncements almost from every High Court in India that no relief could be given by the High Court under Article 226 retrospectively.

''AIR 1953 Nag 138 (N)'', is a recent case on the point. The Petitioner was the Dewan in the Udaipur State from September 1947 but by virtue of an agreement of integration dated 15-12-47 between the Ruler of the Udaipur State and the Government of the Madhya Pradesh, the administration of the Udaipur State was completely integrated with that of Madhya Pradesh and as a consequence of this integration, it was stated that the servants of the Udaipur State would be absorbed as far as possible in their proper positions in Madhya Pradesh and the Petitioner was taken up as an Extra Assistant Commissioner to the Central Provinces Service, Executive Branch. He was placed on probation and eventually his services were terminated by an order passed by the Governor of Madhya Pradesh on 19-1-52.

The Petitioner''s grievence was also directed against the termination of his service. In regard to the Petitioner''s contention that he should be treated as an employee under the Central General Ser-vice with corresponding seniority, pay, status, etc., and that the order of the Madhya Pradesh Government declaring the Petitioner as a probationer in the service of the said Government a nullity, it was held that these contentions ''having relations'' to matters which arose before the Constitution it was not within the competence of the Court to grant them.

One of the earliest decisions of the Supreme Court on this point is reported in Keshavan Madhava Menon Vs. The State of Bombay, wherein it was held that Art 226 is not treated retrospectively. The same principle was adopted in Lachmandas Kewalram Ahuja and Another Vs. The State of Bombay,

''AIR 1951 Nag 443 (J)'', a decision of the Full Bench is in accord with this principle. There are decisions of this Court as well as of the Calcutta High Court also on this point. As a matter of fact, this point is conceded by the learned Advocate for the Petitioner but the only contention is that it is a continuing wrong. The only decision cited by the learned Advocate for the Petitioner is reported in Hindustan Motors Ltd. Vs. Union of India (UOI) and Another, That however does not help the Petitioner. The decision clearly lays down that where the right asserted or the liability denied is one under the ordinary laws of the country and not one arising out of the Constitution, and an assertion or denial has taken place after the Constitution has come into force, it cannot be said that the application of Article 226 is excluded by the fact that such right or liability originated before the commencement of the Constitution.

In this case, the Government''s opinion was made clear by the letter of 21-4-1948, if not by the circulm dated 1-4-48. This had been further reiterated by the letter of the Assistant Director of Public Instruction dated 31-10-48 (Annexure C) which was received in reply to the Petitioner''s memorial against the order of discharge or dismissal. Therefore the Petitioner''s right, if any, to continue in service had been denied by 31-8-1948 at the latest. Nothing would remain for the Petitioner to contend if the order of 21-4-1948 be left intact or winterfeed with and his remedy therefore does not lie under Article 226 which has no retrospective operation.

I am reluctant to go into the merits of the case as the Petitioner may try his chance in a Civil Court or otherwise, as he may be advised, and I would only dismiss his petition as it relates to past grievances taking place before the Constitution came into force. The matter, however, feeing argued on all its bearings I am giving my opinion in short on other contentions.

I have already indicated that there was no legal obligation on the Government of Assam to absorb this officer in the then existing cadre as there was no corresponding post after 15-8-1947 in the newly constituted province of Assam. The mere fact that he was treated as an officer of the Assam Government cannot give him that status unless the rules or the statutes gave him one. The mere sympathetic consideration or action could create no legal obligation to bind the Assam Government. The learned Advocate for the Petitioner seemed to argue as if the State Government was bound by its conduct which operated to create an estoppel but it is clear law that the equitable doctrine of estoppel cannot override the provision of a statute.

Assuming for argument''s sake, the Petitioner was at the material time an employee of the Assam Government, whether he could be retrenched if the Government so desired: It is admitted that Section 240 of the Government of India Act, 1935, applied to the acts and circumstances of the case and if the conditions stated therein were satisfied, the Petitioner could have no grievance.

It was contended on behalf of the Petitioner that the Assistant Director of Public Instruction not being the authority who appointed him had no jurisdiction to dismiss him from the office as he did. This contention, as a matter of fact, is not correct & the Assistant Director of Public Instruction only communicated to the Petitioner the decision of the Government of Assam as conveyed by Mr. Duncan, Secretary to the Government of Assam, by his circular dated 1-4-48, addressed to all Departmental Heads under the Provincial Government which has been marked Annexure BB. That circular "disclosed the decision of the Assam Government in relation to members of the staff in each Department who were released by the East. Bengal Government at Sylhet on account of their exercise of option in favour of the ''Rest of India''.

That letter or circular discloses the attitude taken by the Assam Government in the matter and the policy followed, according to which the Assistant Director'' of Public Instruction issued the letter under instruction. I might quote the relevant extract from the said Annexure BB--

In the Cabinet decisions taken on 5-9-1947, 29-9-1947 and 1-12-1947, which were communicated to you in Memo No. Sections 11/73 dated 3-10-1947 and Circular No. SS/11/94 dated 6-12-1947, Government authorised the absorption of these officials, as far as possible, in vacancies created by the release of Government servants to serve in Pakistan.

These measures have and are being given effect to by the Special Officer appointed for the purpose. He will continue the work of absorption in the interests of the Public Service and the personnel as far as practicable. The time has therefore come to deal with those posts in Sylhet which owing to the transfer of a major portion of the territory of that district have ipso facto become surplus to the requirements of administration.

To save unnecessary strain to the public exchequer on account of these surplus posts and to make the position of Government clear in respect of those released officials who cannot for various reasons be absorbed, Government have decided that without prejudice to their future employment where possible, the holders of these surplus posts should be discharged as early as possible, on compensation, pension or gratuity as may be admissible to them under Articles 71 and 112 of the Assam Pension Manual. I am therefore to request that you will please take immediate action on the following lines--

(1) Under Article 80 of the Assam Pension Manual 3 months'' notice of discharge with effect from 1-1-1948 should be served on all the permanent released personnel who have not yet been permanently absorbed stating clearly that due to the transfer of the major portion of Sylhet with its institutions their services will not be required on and from 1-4-1948.

(2) All duty posts in various cadres and establishments that existed in the seceding portion of Sylhet are hereby abolished with effect from 1-4-1948 and the respective cadres in your Department will stand reduced by the number of posts so abolished from that date.....* * * *

(4) The leave salary paid from 1-1-1948 and to be paid up to 31-3-1948 to the personnel to be discharged under these orders should be adjusted against the 3 months'' pay payable to them under Article 80 of the Pension Manual. * * * *

It is therefore clear that the order of discharge with regard to the Petitioner did not emanate from the Assistant Director of Public Instruction as alleged but it was only a Government''s decision conveyed and it did not militate against Section 240(2), Government of India Act, as contended.

The question of notice was not pressed at the hearing and even if pressed, there would not be much substance in that contention as the Petitioner had sufficient notice. It has been held by the Madras High Court, vide -- Dr. M. Krishnamoorthy Vs. The State of Madras and Another, that so far there is no contravention of Article 311 of the Constitution which corresponds to the provision of Section 240, Government of India Act, 1935, the High Court would have no jurisdiction'' to quash an order of dismissal by the Government, though of course that was a case where the Government officer was dismissed from service as a result of an enquiry against his conduct.

The other contention on this head was confined to the provisions of the Pension Manual. The Pension Manual does not deal with service conditions as such, nor does it purport to curtail the rights of the Government otherwise given by the statute. The relevant provisions have been pointed out by the learned Advocate for the Petitioner more with a view to show that the Provincial Government exercised its power with malice or with bad faith.

I have already indicated that the question of mala fide has to be established by the Petitioner in a properly constituted suit and this Court will not constitute into a Court of original jurisdiction to enquire into alleged wrongs unless it appears on the face of it that there have been violations of some legal provisions or rules having the force of law. The orders under the Pension Manual are purely administrative orders and directory in character and unless it is shown that the authority exceeded its jurisdiction or acted with mala fides, question of interference by this Court does not arise. It is trite to say that this Court does not exercise the powers of an appellate Court in these matters, nor can it substitute its decision in place of the Government''s decision unless some clear provisions of law are violated. The Petitioner''s contention is that Rule 72 of the Pension Manual was not correctly applied to his case, and. his reasoning is given in paragraph 24(k) of his petition which runs as follows:

The Government of Assam, in contravention of Article 72 of the Assam Pension Manual, discharged the Petitioner, a senior officer, though the said Government left untouched its junior, officers of the same service.

If Article 72 of the said Manual, which was the only rule to be adopted in times of ''selection of Officers to be discharged upon the reduction of an establishment'' were applied, then almost all the officers retained in service by the Government of Assam after the partition of India in the Departments of the Petitioner, viz., in the Sanskrit and Bengali Departments, would have been discharged before the discharge of the Petitioner.

This argument is fallacious on two grounds -- firstly, the Petitioner cannot impose his decision on the Government as to who should be retrenched, it depending upon the pleasure of the Governor or His Majesty as to who should be retained and who discharged, the service being held at pleasure (vide Section 240, Government of India Act), and secondly, there is nothing in Rule 72 itself which says that retrenchment of a senior officer in preference to a junior officer (assuming the Petitioner was senior) would be ultra vires or illegal. The Government or the authority concerned is best entitled to consider who would best fit in for the subsisting job. Rule 72 is only suggestive or directory and never mandatory -- and it runs as follows:

The selection of the officers to be discharged upon the reduction of an establishment should prima facie be so made that the least charge for compensation pension will be incurred.

The discretion of the Government is not done away with. The action of the Assam Government was rather generous as it took upon itself a responsibility which in my opinion the law of the land could not compel. It was a special circumstance that the Government had to handle and in my opinion, the case is covered by Rule 78 of the Pension Manual which runs as follows:

If it is necessary to discharge an officer in consequence of a change in the nature of the duties of his office, the case should be referred to * * * * Government, who will deal with the rules laid down in this section as to notice of discharge and compensation pension or gratuity.

It was an admitted fact that there was, no subsisting vacancy to be filled in by the Petitioner in the only other Government College in the Province of Assam that was newly constituted under the Indian Independence Act, 1947, Section 9(6), and the Government amply notified its intention by the Circular letter dated 1-4-48. In my opinion, there was no mala fides in the action of the Government nor any illegality in discharging the Petitioner as a surplus hand, in the special circumstances brought about by the partition of the country.

Another aspect of the case was that the Petitioner started with a wrong presumption that he could not be retrenched or pensioned off by the State Government even if they considered his retrenchment to be necessary. Once it is recognised that civil servants hold office at the pleasure of His Majesty or the Head of the State, the State has the power to terminate their employment at pleasure at any time for any reason stated or unstated and that right of the State cannot be abridged or curtailed by any rule made by the State itself--and Pension rules are such rules made by the Provincial Government--and even assuming: there was violation of some of these rules, that cannot help the Petitioner to be reinstated, or the discharge order to be vacated as prayed for. The question of other incidental reliefs does not arise.

The net result is that the petition fails; but in the circumstances of the case, I would not order for costs.

The learned Advocate for the Petitioner submits that Radharaman Das''s case is on all fours with the case of Hiranmoy Bhattacharjee and that also must therefore fail on identical grounds and the petition dismissed without cost.

The same judgment will cover both the rules.