Makkena Sambayya vs Makkena Tirupatayya and Another

Govinda Menon, J.—The appellant before us was the first defendant in the Court below, the second defendant being the Government of

Madras represented by the District Collector, Guntur. The plaintiff brought a suit for a declaration that the order of the Revenue Divisional Officer,

Guntur, dated 27th July 1947 is illegal, ultra vires, and not binding on him. The learned Judge decreed the suit as prayed for and hence this appeal

by the first defendant.

The first defendant was the permanent village munsif of Nandigama village in Sat-tenapalli taluk, Guntur district. On account of irregularities in

official, proceedings as well as charges of misappropriation he was dismissed by the Revenue Divisional Officer on 25th July 1944, which

dismissal, on appeal to the Collector, was confirmed on 31st December 1944. On 15th January 1945, under Ex. A. 5 the Revenue Divisional

Officer appointed the plaintiff as acting village munsif which appointment was confirmed on 31st January 1945 under Ex. A. 6. Against the

confirmation of the order of dismissal the first defendant preferred a second appeal to the Revenue Board which was also dismissed on 4th May

1945 (Ex. A. 3). There was a further petition to the Government for interference in this matter in revision and on this the order under the signature

of the Assistant Secretary to Government was that the law does not provide for interference by the Government in the matter and therefore the

petition was rejected on 14th October 1946 (Ex. A. 4). Subsequently, the first defendant memorialised the Honourable Prime Minister,

Government of Madras, under Ex. E. 1, and on that, orders were passed (Ex. B. 2) on 16th May 1947 by which the Government came to the

following conclusion:

Last year, the petitioner submitted a petition to the Government requesting reinstatement to the post. The petition was rejected in the Government

endorsement read above. The Government have since re-examined the case, on a petition subsequently received from the dismissed headman.

They consider that, in view of the fact that the petitioner is young, the punishment is too severe and this is a fit case in which they should exercise

clemency and reduce the punishment. They accordingly direct that the petitioner should be restored to duty, the period between the date of his

dismissal and the date of his restoration being treated as one of suspension and that he should be warned to behave himself in future. The petitioner

is referred to the Board of Revenue for orders on his petition read above.

The Board of Revenue to whom the petitioner was referred for orders by the Government, in its turn directed the Collector to enquire into the

matter, who referred the petitioner to the Revenue Divisional Officer who on 27th July 1947, passed the following order:

Sri Makkena Sambiah is hereby restored to office as headman of Nandigama village of Sattenapalle taluk in relief of Sri Makkena Tirupathiah

whose appointment ordered in this office R. D. is No. 827 of 1945 dated 31st January 1945 is hereby superseded.

The plaintiff, whose appointment terminated as a result of the reinstatement of the present appellant, has brought the suit for a declaration that the

order of the Revenue Divisional Officer was ultra vires, illegal and invalid and that the order by which he was appointed, viz., Ex. A. 6, should

remain effective and that the first defendant cannot have any right to the office. The first defendant''s contention in the court below was that the

Government has complete jurisdiction and power to review the earlier order refusing to interfere and thai according to the provisions of the Madras

Hereditary Village Offices Act his restoration is valid and operative. There was a further question raised as to whether the suit was entertainable at

all in a civil court. The State of Madras which have been impleaded as the second defendant in the suit supported the first defendant and asserted

that they had ample powers to act in the manner they did. As stated already the Subordinate Judge agreed with the contentions urged on behalf of

the plaintiff and decreed the suit. The State of Madras though a party respondent to this appeal, actively supports the case put forward on behalf of

the appellant and contends that Ex. B. 2 by which the Government held, on a re-examination of the case, that the appellant was entitled to a

reduction of punishment find clemency cannot be questioned by the plaintiff. It is further contended that under the provisions of the Government of

India Act, 1935, Sections 240 and 241, then in force, the subsequent order, Ex. A. 7, cancelling the earlier order has force and vitality and cannot

be questioned at all.

The first contention raised on behalf of the appellant has reference to provisions of the Madras Hereditary Village Offices Act, 1895, and the

proper construction to be put upon certain sections of that statute. It is therefore necessary to refer to its provisions somewhat to detail. The

Revenue Divisional Officer is ordinarily referred to as ""The Collector"" for purposes of this Act and the chief executive officer of the District, the

Collector, is styled the ""District Collector"". Section 7 empowers the Collector to fine, suspend, dismiss or remove, the holder of any of the offices

forming class (1) to Section 3 (village munsifs etc.) for misconduct or for neglect of duty or incapacity or for non-residence in the village or for any

other sufficient cause, and to make a record of his reasons for passing an order under this provision and furnish a copy of the same to the- village

officer concerned. Section 10 enacts that when a vacancy occurs in any of the"" village offices forming class (1) in Section 3 the Collector shall fill

up the vacancy in accordance with the provisions of the following sub-sections. The qualifications are enumerated therein and the prohibitions are

also contained therein. Sub-section (4) reads as follows:

Where an office has become vacant by the dismissal, removal or suspension of the last holder, the Collector may direct that, until the death, re-

appointment or return to duty of such last holder, the duties of the office shall be performed by some person duly qualified under Sub-section (i)

who is not an undivided member of the family of the dismissed, removed or suspended officer; provided that when the officer who has been

dismissed or removed, dies, or if the officer who has been suspended dies while under suspension, the vacancy caused by such death shall be filled

up in accordance with the provisions of Sub-sections (2) and (3), i.e., by observing the rule of primogeniture and in some cases persons other than

the direct heir being appointed.

Sub-section (6) is important in this way because it relates to the method of filling up a vacancy caused by resignation, dismissal, removal or

suspension. It reads as follows:

If a vacancy is caused by the resignation, dismissal, removal or suspension of the holder of an office and the Collector does not give the direction

referred to in Sub-section (4) he shall fill up the vacancy in accordance with the provisions of this section as if it had been caused by the death of

the said holder; provided that, upon the expiry of the period of suspension of an officer who has been suspended, or if, for any reason, an officer

who has been dismissed, removed or suspended is permitted to resume the office from which he has been dismissed, removed or suspended, the

person appointed to fill the vacancy caused by the said suspension, dismissal or removal shall cease to hold office.

Section 13 refers to a suit for offices, for recovery of emoluments and for registry as heir, i.e., that section allows persons who are entitled under

Sub-section (2) or Sub-section (3) of Section 10 to sue for emoluments or to hold such office and enjoy the emoluments. This suit is not before a

civil court but before the Collector. Section 23 provides for appeals from every order passed by a Collector u/s 6 or Section 7 and from every

decree or order passed by a Collector in a suit preferred u/s 13 to be filed within one month to the District Collector, or, if the said order or

decree was passed by the District Collector, an appeal shall lie, within three months to the Board of Revenue. The decision on appeal of the

District Collector or the Board of Revenue, as the case may be, shall be final; provided that in respect of the offices of head of the village and

village accountant, a second appeal shall lie, within three months to the Board of Revenue against the decision on appeal of the District Collector.

It was under the provisions of Section 7 that the first defendant was removed from office and his appeal and second appeal were u/s 23 of the

Act. It was in accordance with the powers conferred u/s 10 that the plaintiff was appointed and the contention is that the proviso to Sub-section

(6) of Section 10 would come into play when the dismissed or removed holder of the officer is, ''for any reason'', permitted to return to duty.

The first argument of the learned counsel for the appellant is that the proviso to Sub-section (6) of Section 10 makes it obligatory, for the person

appointed by the Collector, in the place of one who has been suspended, or removed, or dismissed, to give room to the officer whose dismissal,

removal, or suspension is, for any reason, cancelled and he is permitted to resume the office from which he has been dismissed, removed, or

suspended; and in that case the person appointed to fill the vacancy caused by the suspension, dismissal or removal shall cease to hold office. The

first defendant contends that on account of the words ""for any reason"", even if his dismissal or removal, was not set aside by any legitimate right of

appeal, the plaintiff, who was appointed to fill the vacancy, has to vacate for him and that he should be permitted to resume the office. What is

urged is that ordinarily, where pending an appeal a person is appointed to fill an office, when that appeal is allowed he has to vacate it. In the

present case, because of the very wide import of the words ""for any reason"" it should be held that since the order of the Government which is not

one contemplated by the statute restores him to office, he cannot be denied the right to hold office and recover the same from the person

appointed in his stead. It is further urged that the words ""for any reason"" contemplate the cancellation by the authority itself of the order of dismissal

or suspension or by an appellate authority or by a revisional authority, and that it is not open to the person appointed to fill the vacancy to question

the correctness or propriety of the order restoring the dismissed or the removed incumbent. We are not inclined to accept the contention which

would lead to such a drastic result. In our opinion all that, the proviso to Sub-section (6) of Section 10 contemplates is that if by legitimate means,

that is by an appeal or a second appeal, a person who has been dismissed or removed from office is allow-ed to come back by the order of

dismissal or removal being cancelled, then the person who is appointed shall vacate the office. What is to be remembered is that the operative part

of the section relates to the filling up of the vacancy and the method of doing it and the proviso is only in the nature of a restitution. The correct and

proper way of reading the sub-section with its proviso is to interpret it as laying down that the order of appointment for filling up the vacancy

caused by resignation, dismissal, removal or suspension, is subject to a defeasance in case the person who is removed, dismissed, or suspended, is

permitted to resume duty by the cancellation of the embargo put upon him. It does not mean that a higher authority not vesied with any power or

jurisdiction can, without legal justification, cancel a perfectly valid order of dismissal, suspension, or removal and permit the return to duty of an

officer who has been properly dismissed or removed from office. Sub-sections (4) and (6) have to be read together in conformity and harmony

with each other. In our view, all that the proviso to sub-section (6) lays down is that the fact that a qualified person under Sub-section (4) has been

appointed to fill a vacancy caused by the dismissal, removal, or suspension, by an authority, should not prevent the legitimate holder, if he is later

on permitted to resume duty, from reaping the fruits of the appellate order or the second appellate order. It seems to us therefore that the extreme

contention put forward that any illegal order of cancellation restores the dismissed individual to the original office cannot be supported. The words

far any reason"" should receive a meaning in conformity with the pro-visions of the statute and not in derogation of the intent as well as the written

provisions of law. Construed in this manner, we cannot hold that oven though the order under Ex. A. 7 was passed without any statutory authority,

still the first defendant can be allowed to resume office. The above contention was based upon the supposition that the basis for Ex. A. 7, viz., the

order of the Government restoring the first defendant to office was illegal.

The next line of attack by the first defendant is with regard to the maintainability of the suit itself. The first defendant says that the present suit for

a declaration is only a make believe and is in reality a suit for the recovery of the office of village munsif. That is, by getting the declaration, the

plaintiff wants to get back the office from which he had been dismissed, and therefore in substance the claim is one for the recovery of office for

which purpose the proper forum is not a civil court but the court of the Collector u/s 13 of the Act. Where a special machinery is constituted for

dealing with certain disputes then it is not open to the parties to resort to the ordinary civil courts. In this case, according to the first defendant it is

open to the plaintiff to sue for the recovery of the office u/s 13 before the Collector. Against the decree of the Collector an appeal will lie to the

District Collector and since the office is one of the head of the village, a second appeal will also lie to the Board of Revenue. Without resorting to

these remedies and availing himself of the provisions of Sections 13 and 23 of the Madras Hereditary Village Offices Act the plaintiff has no

justification to come before a civil court and sue for a declaration which in essence is one for the recovery of the office. In this connection Section

21 of the Act has also to be considered by which jurisdiction of civil courts is barred with regard to matters specially enacted in this statute.

That section lays down that no civil court shall have authority to take into consideration or decide any claim to succeed to any of the offices

specified in Section 3 o''r any question as to the rate or amount of the emoluments of any such office or, except as provided in proviso (ii) to Sub-

section (1) of Section 13, any claim to recover the emoluments of any such office. Claim to succeed to the office of headman is rea''ly what the

plaintiff asks for, and therefore according to the defendant, a civil court will have no right to adjudicate on this claim. Great re liance is placed by

the learned counsel for the appellant on a judgment of Somayya J. in -- Rentala Narasimha Rao Vs. Rentala Venkataramana Rao, , where the

learned Judge held that where the plaintiff claimed a right of suc cession under the Madras Hereditary Village Offices Act and alleged that the

defendant was appointed by the revenue authorities in viola- lion of his right, his remedy is to sue u/s 13 of the Act in the Revenue Court for the

recovery of his office from the person alleged to have been wrongfully appointed and there fore the plaintiff, by merely confining his relief as one for

a declaration of the invalidity of the defendant''s appointment, cannot be permuted to agitate the matter before a civil court. The learned Judge

further held that Section 21 of the Act bars a civil court from entertaining such a suit.

In addition to this, the decision in Didugu Kailasapathi Vs. Secy. of State and Another, was also brought to our notice. In that case Beasley C, J.

held that where a person is registered as a minor karnam of village but later the Revenue Board cancelled the registration and directed the Revenue

Divisional Officer to make a fresh appointment which is done, and the person deprived of his office flies in the civil court a suit for declaration that

the cancellation by the Revenue Board was ultra vires and for delivering the office of karnam to him, the remedy sought by plaintiff, being one

which in effect he could have had by filing a suit in revenue court u/s 13 of the Act, the jurisdiction of the civil court is barred u/s 21. Another case

of the same variety is to be found in the judgment of Pandrang Row and King JJ. in -- ''Venkatasubbiah v. Secretary of State'', 1933 1 M.L.J. 539

where the learned Judges negatived the contention that a civil court is competent to declare that the decision of the Board of Revenue in a suit u/s

13 of the Madras Hereditary Village Offices Act, where the Buard had decided the matter in appeal to it, is contrary to law. Even assuming that

the decision of the Board is contrary to law, it is not competent for a civil court to declare that such a decision was contrary to law, for then a party

would be really attempting to obtain an adjudication by a civil court of a claim which has been excluded from the jurisdiction of a civil court. We

are not prepared to hold that these authorities in any way preclude the civil court from entertaining the present suit.

In none of these cases was the question regarding the validity of an order of restoration by an appellate tribunal of a dismissed head of the village

was ever considered. On the other hand -- ''Secretary of State v. Subbarao'', 56 Mad 749 and -- K.M. Duraiswami Reddiar Vs. The Secretary

of State for India in Council and Others, are two pronouncements of this court where the right of a civil court to adjudicate upon the invalid or ultra

vires nature of the orders passed by the Collector or the Board of Revenue was considered and decided in favour of upholding the court''s

jurisdiction. Where in a second appeal to it, the Board of Revenue set aside the order of the Collector and restored that of the Revenue Divisional

Officer, on the ground that there was no right of second appeal to the Board of Revenue from an appellate order of the Collector modifying an

order of dismissal and converting it into one of suspension. Beasley C. J. and Bardswell J. held in -- ''Secretary of State v. Subba Rao'', 56 Mad

749 in a suit filed by the karnam for a declaration that the order of the Board of Revenue was invalid and ultra vires, that the order was without

jurisdiction and was ultra vires and that the suit, though for a mere declaration, was maintainable. The principle underlying this decision is where the

revenue authority, though purporting to act under the provisions of the Madras Hereditary Village Offices Act, octod without jurisdiction, or in

excess of jurisdiction, the right of the civil courts to declare such acts ultra vires has not been abrogated or removed by any of the provisions of the

Madras Heriditary Village Offices Act. Since no second appeal lay to the Board of Revenue in a matter where the Collector imposed in order of

suspension, it was held by this court that the order of the Revenue Board setting aside the order of suspension in second appeal was without

jurisdiction. The learned Judges have referred to a large body of case law in support of their decision and it is unnecessary to refer to any of them

now. Wadsworth J. in -- K.M. Duraiswami Reddiar Vs. The Secretary of State for India in Council and Others, laid clown that when a village

munsif lawfully appointed has been unlawfully threatened with ejection by an official act, he can maintain a suit to protect his right of office and it is

a suit which the civil courts have jurisdiction to entertain. Therefore if the plaintiff, who has been lawfully appointed, is unlawfully tried to be ousted

by the order of the Government on which Ex. A. 7 was passed by the Collector, then it is open to the plaintiff to sue for declaration. The learned

Judge referred to an earlier decision of this court in -- ''Venkataraghaviah v. Chenchu Subbia'', 33 M. L. W. 294.

But it is contended by Mr. Ramachandra Rao for the appellant that even the question of the ultra vires nature of Ex. A. 7 based upon the

Government''s order can be agitated in a revenue court in view of the observations of the Judicial Committee in -- ''Raleigh Investment Co. Ltd. v.

Governor General in Council'', 1947 2 M.L.J. 16. But we do not think that any support can be got from that decision for the proposition which the

learned counsel enunciates. What their Lordships held was that Section 67 of the Income Tax Act has to be construed in the setting that the Act

gives an assessee the right effectively to raise in relation to an assessment ''made upon him the question whether or not a provision in the Act was

ultra vires. That is, it was open to the assessee to contend before the Income Tax authorities themselves that a certain provision of the Act by

which he was assessed is ultra vires. He need not proceed to a civil court for getting a declaration regarding the ultra vires nature of the statute, but

it is open to him to raise it before the same tribunal which itself is the creator of that statute, to hold whether certain provisions of that statute are

intra vires or not. Both these cases emphasise that the jurisdiction of the civil courts is not ousted except where the matters are specifically

provided for in the special statute and where the act of the authorities under that statute can be brought within the confines of the power strictly

conferred upon the authorities. We are therefore of opinion that the objection regarding the forum and the maintainability of the suit cannot be

upheld.

The question has now to be considered whether Ex. A. 7 based upon the Government''s order Ex. B. 2 restoring the appellant to the office is

ultra vires the powers of the Government. One thing is clear and that is that the provisions of the Madras Hereditary Village Offices Act do not

confer any right upon the Government either to affirm or set aside the final orders made by any statutory body because Section 23 makes a

decision on an appeal to the District Collector or the Board of Revenue, as the case may be, absolutely final. Here, in this case, the Board of

Revenue, in second appeal under Ex. A. 3 upheld the order of dismissal made by the Revenue Divisional Officer. The statute does not confer upon

the Government any power to interfere. But the learned Government Pleader contends that apart from the provisions of the statute there is a

supervening and all pervading power in the Government of the State to interfere in all matters regarding appointments and dismissals made by

subordinate authorities and therefore even if, in the first instance, the Government thought it had no power to interfere, the subsequent recantation

of their order by Ex. B. 2 would be valid and such being the case the order of reappointment contained in Ex. A. 7 cannot be interfered with by the

court. At the time Ex. B. 2 was passed, the Government of India Act, 1935, was in force, and the Government Pleader refers to various provisions

of that Act justifying the action of the Government referred to in Ex. B. 2. Sections 52, 59, 240 and 241 of the Government of India Act were

specially stressed. Section 52 relates to the special responsibilities of the Governor with regard to the safeguarding of the legitimate interests of

persons who are, or have been, members of the . public services. Section 59 relates to the conduct of business by the Provincial Government and

lays down that all executive actions of the Government of a Province shall be expressed to be taken in the name of the Governor. Sections 240

and 241 refer to the tenure of office of persons employed in civil capacities in India and contemplates that every person holding any civil post under

the Crown in India holds it during His Majesty''s pleasure. Section 241(5) was particularly relied upon and it runs as follows: ""No rules made under

this section and no Act of any Legislature in India shall be construed to limit or abridge the power of the Governor General or a Governor to deal

with the case of any person serving His Majesty in a civil capacity in India in such manner as may appear to him to be just and equitable."" We shall

first of all dispose of the contention based upon Section 241(5). No doubt under that provision, any rule made under the Government of India Act,

or any Act of the Legislature, cannot deprive the Governor of the special responsibility vested in him under the Instrument of Instructions to

safeguard the interests of the public servants in India and therefore it is open to the Governor to interfere in any matter with regard to the dismissal

or restoration of a public servant even if orders made under statutes had become final. In accordance with the scheme of the Government in vogue

at the time when the Government of India Act, 1935, was in force, there were rules for the guidance of the business of the Government of Madras

framed u/s 59 of the Government of India Act and rule 11 stated that all orders shall be in the name of the Governor and cannot be called in

question u/s 53. If Ex. B. 1 had been addressed as a memorial to the Governor, and the Governor in his discretion, has interfered in accordance

with the powers conferred on him under Sub-section (5) of Section 241, then it might have been said that whatever orders have been passed by

the executive Government will be subject to revision at the instance of the Governor. But it has not been shown by the learned Government

Pleader that the memorial Ex. B. 1 was disposed of as a petition for the redressal of grievance addressed to the Governor in accordance with the

powers u/s 241(5). It is well known that rules had been framed when the governance of the country was under the authority conferred by the

Government of India Act, 1935, for the Governor to safeguard the interests of the services and to receive and interfere in petitions against the

order of the Government as such exercising his discretion. The result of such rules is that the Governor is made an appellate authority as it were

over the Government of which he is the head; whereunder he acts under the advice of his ministers in matters relating to services.

We granted time to the learned Government Pleader to ascertain whether Ex. B. 1 was ever sent to the Governor in order that he might use his

discretion and either confirm or set aside the order of the Government, Ex. A. 4, but the learned Government Pleader was not able to give us any

information that Ex. B. 1 was either sent to the Governor or that Ex. B. 2 is an order passed by the Governor in pursuance of his special

responsibility and powers reserved in him u/s 241(5). Therefore we take it that Ex. B. 2 is, from what appears on the face of it, an order by the

Government reviewing their earlier order, Ex. A. 4. The structure of the constitution of a Provincial Government during the existence of the

Government of India Act, 1935, before its amendment by the Indian Independence Act, had vested in the Governor a general power of

safeguarding and protecting the services and that power is derived from Section 241(5), and the Instrument of Instructions issued to him. Since we

are not satisfied that Ex. B. 2 was issued in pursuance of the exercise of any such power, we cannot agree with the learned Government Pleader

that the order Ex. B. 2 emanated from the Governor acting in accordance with his powers u/s 241(5) and therefore we are not prepared to accept

his contention.

The substantial argument next put forward by the learned Government Pleader to reinforce the point of view urged on behalf of the appellant is

that firstly the Government of the Province has absolute discretion in the matter of retaining or removing servants of the Government under the

authority derived from the Crown, because the Government of the province is the agent of the Crown and since the Crown has got absolute

discretion in the matter of the retention of a member of the services, the order Ex. B. 2 whereby the first defendant was restored, resulting in the

plaintiff being ousted, is valid and legal and cannot be called in question. Reference was made to Section 49(2) Of the Government o� India Act,

1935, whore it is stated that the executive authority of each province extends to matters with respect to which the Legislature of the Province has

power to make laws. This section corresponds to Article 162 of the present Constitution. The executive and the legislative authorities of the

province are derived from the powers conferred under the Parliamentary statutes then in force. So far as the services are concerned, the history of

this power can be traced back to Section 96-B of the Government of India Act, 1919, which in a somewhat changed form was re-enacted as

Section 240 of the Act of 1935 and the same idea is incorporated in Article 311 of the Constitution. Whereas u/s 96-B of the Government of India

Act, 1919, and Section 240 of the Act of 1935, every person in the civil service of the Crown in India holds office during His Majesty''s pleasure,

under Article 311 of the Constitution, on account of the republican nature of our Constitution, any person who holds a civil post under the Union or

State shall not be dismissed or removed by any authority subordinate to that by which he was appointed. A similar provision is contained in Sub-

section (2) of Section 240 of the Act of 1935. But the question here is not with regard to the dismissal by a person subordinate to the authority

who appointed the officer, but the question is whether his holding of the office can be terminated at the will and pleasure of the Government of the

Province.

In -- ''Venkatarao v. Secretary of State'', ILR (1937) Mad 532, the Privy Council had to consider the case of persons who had been removed

from service by departmental authorities in this province, and their Lordships held that since Section 96-B of the Government of India Act, 1919,

expressly states that persons in the civil service hold office during the pleasure of the Crown, the dismissal of a civil servant in utter disregard of the

procedure prescribed by the rules framed under the section, will not give a right of action for wrongful dismissal. The privy Council had to consider

two cases, --''Shenton v. Smith'', (1895) A. C. 229 and --''Gould v. Stuart'', (1896) A. C. 575. Discussing these two cases, Lord Roche in

delivering the judgment makes a distinction between the holding of an appointment under the rules and regulations of the service as well as an

appointment under conditions expressly enacted by a statute and lays down that in cases where the appointments are under the provisions of a

statute, they cannot bo terminated except in accordance with the provisions contained in the statute. It is clear from -- ''Shenton''s case'', (1895) A.

C. 229 that any servant of the Crown in the absence of a special contract, holds his office during the pleasure of the Crown and that in the case of

a dismissal of such an officer he has no special cause of action. At page 235, Lord Hobhouse states as follows: ""If any public servant considers

that he has been dismissed unjustly, his remedy is not by a law suit, but by an appeal of an official or political kind."" Later on he continues to

observe:

the difficulty of dismissing servants whose continuance in office is detrimental to the State would, if it were necessary to prove some offence to the

satisfaction of a jury, be such as seriously to impede the working of the public service. No authority, legal or constitutional, has been produced to

countenance the doctrine that persons taking service with a colonial Government to whom the regulations have been addressed, can insist upon

holding office till removed according to the process thereby laid down.

We have no doubt that according to the law, an officer holds his post during the continuance of the Government of India Act, 1935, at the pleasure

of the Crown, and unless there are special statutes regulating the appointments and removals, he can be removed at pleasure. See -- ''Ramdas

Hajra v. Secretary of State'', 17 Cal L J 75; -- ''High Commr. for India v. I. M. Lall'', 1948 2 M.L.J. 55 and -- ''District School Board of North

Kanara, Karwar v. Parameswar Jattu'', ILR (1943) Bom 411. This is clear from the judgment of Mookerjee J. in -- ''Ramdas Hajra v. Secretary

of State'', 17 C.L.J. 75, where the case law has been very exhaustively considered and discussed. Except when it is otherwise provided by statute,

all public officers and servants of the Crown hold their appointments at the pleasure of the Crown; and all, in general are subject to dismissal at any

time without cause assigned. What the Crown can do independently of any enquiry and with-out the assignment of any reason, cannot be

questioned in a court of law on the ground that the enquiry has not been satisfactory or in proper form, or that the reason assigned is unsound and

open to criticism. Therefore a suit for damages for wrongful dismissal cannot be maintained against the Crown. As we have already stated, the

Privy Council in -- ''Venkatarao v. Secretary of State'', ILR (1937) Mad 532 makes a distinction between two classes of cases, viz., the --

''Gould''s case'', (1896) A. C. 575 and -- ''Shenton''s case'', (1895) A. C. 229. The general category is defined and illustrated by -- ''Shenton''s

case'', (1895) A. C. 229 and the exceptional category is defined and illustrated in the -- ''Gould''s case'', (1896) A. C. 575. It seems to us that the

more appropriate category to be applied so far as our present case is concerned is that enunciated in -- ''Gould''s case'', (1896) A. C. 575, viz.,

where the office is held under conditions expressly enacted by a statute.

A statutory right as distinguished from an ordinary contractual right is clarified at page 62 in -- ''High Commr. for India v. I. M. Lall'', 1948 2

M.L.J. 55 where their Lordships of the Judicial Committee observe as follows:

The respondent sought to establish a statutory right to recover arrears of pay by action in the civil court; he made reference to certain sections of

the Government of India Act, 1935, viz., Sections 179(9), 247(4), 249 and 250, but it is enough to state that their Lordships are unable to derive

from them any statutory right to recover arrears of pay by action.

In the present case the village munsif holds his office not as a result of any contractual right or obligation but in accordance with the provisions of a

statute and if the statute fixes certain modes and methods for appointment, dismissal, or removal, the same have to be complied with, and if

according to the provisions of that statute, a person appointed or dismissed cannot be removed or re-appointed then the general principle that an

officer holds his post in the discretion of the Crown cannot be invoked to justify an action not contemplated by the Statute. The Madras Hereditary

Village Offices Act makes the Board of Revenue the final authority in regard to the appointment and removal of the village officers and the

Government was perfectly right in the view which they took in Ex. A. 4 that the law does not provide for interference by the Government in such

matters. Such being the case and since we are satisfied that Ex. B. 2 is not the result of the Governor exercising his discretion but the Government

reviewing their earlier order, it cannot be said that the reinstatement of the first defendant can be validly acknowledged as proper and just. It has

therefore to be held that the confirmation of the order of dismissal of the first defendant by the Board of Revenue in second appeal stands and that

his restoration to office by the order of the Government contained in Ex. A. 7 is invalid and inoperative. We are fortified in this conclusion by the

procedure adopted by the Government in passing Madras Act XVIII of 1939. That was an Act intended to validate the restoration of village

officers who lost their offices by reason of their association or connection with political movements. It so happened that on account of their

participation in the political movements of early twenties, certain village officers had been dismissed by the then British Government and they were

restored after the popular Government came into existence as a result of the Government of India Act 1935. But it was felt that such restoration

was against the provisions of the Madras Hereditary Village Offices Act and therefore the Provincial Government had to resort to special

legislation to validate the reinstatement of those officers. If, as a matter of fact, it is open to the Provincial Government to appoint any one or

terminate the services of any one, at their will and pleasure, despite the provisions of the Madras Hereditary Village Offices Act, we see no reason

why the reinstatement of those village officers by the Government in 1937 or 1938 was considered invalid. As it was thought that such restorations

were outside the authority conferred under the Madras Hereditary Village Offices Act, the Act of 1939 had to be passed.

The last and final argument addressed to us was on the basis of Article 375 of the Constitution which lays down that all officers, judicial,

executive, and ministerial, throughout the territory of India, shall continue to exercise their respective functions subject to the provisions of the

Constitution. The argument is put in this way. On the 26th January 1950 When India became a republic and the Constitution came into being, the

first defendant was holding the office of the village headman and therefore he continues to hold the post under this Article. How it came about was

that even though the plaintiff was appointed as the village munsif, he could not get possession of the office and therefore the first defendant

continued in that capacity on the date when the Constitution came into being. But the difficulty in accepting this argument is that Article 375

contemplates I only officers who were validly holding their1 office and not those who could be said to hold office despite their removal. As it has

happened the final order of dismissal of the first defendant was confirmed by the Board of Revenue in second appeal as early as 4th May 1945

and since then the person who validly held the office must be the plaintiff and not the first defendant. Moreover, by the time the Constitution came

into existence, the Subordinate Judge had already passed his decree declaring that the plaintiff cannot be removed from office and that he was the

properly appointed village munsif of Nandigama village. The decree was passed on the 24th December 1948 and since an order of injunction had

been passed in appeal by this court it cannot be said that the first defendant has obtained any valid right to hold office as a result of that

interlocutory order. We therefore agree with the Subordinate Judge that the order, Ex. A. 7, is invalid and inoperative and that under that order the

first defendant cannot assume the office of, the village munsif of Nandigama village. The lower court was therefore perfectly justified in decreeing

the suit and this appeal is dismissed but in the circumstances each party will bear his costs throughout.