- (1.) This is an appeal by the State of Madras and the Union of India against the judgment and decree of the High Court on a certificate granted by that court under Art. 133 of the Constitution. The appeal arises out of a suit filed by the respondent herein, who was a member of the Indian Civil Service, for a declaration that the order issued by the Chief Secretary to the Government of Madras on 7-8-1947, purporting to terminate his services as from the afternoon of 14-8-1947, is null, void and inoperative and that he must be deemed to continue in the Indian Civil Service as a member thereof. The suit was filed on the original side of the High Court of Madras and after having been partly tried by a Single Judge who recorded the evidence, was thereafter heard by a Bench of two Judges in view of the important constitutional question that arose for consideration in the case. The Bench found in favour of the plaintiff and decreed the suit and hence the appeal by the State to this Court.
(2.) The case for the plaintiff is short and simple. He was recruited to the Indian Civil Service by open campetitive examination in 1936 and joined duty in the then Province of Madras in October, 1937. Since then he was serving under the Government of Madras in various situations. The last office he held was as Sub-Collector and Joint Magistrate at Dindigal. On 2-6-1947, ho went on leave. While on leave, he received a letter from the Government of India dated 19-6-1947, Wherein he was asked whether he was willing to continue in the service of the Government after the then contemplated transfer of power from the British Government to the Dominion of India on 15-8-1947. The plaintiff sent a reply expressing his willingness. On 9-8-1947, however, he received a communication from the Government of Madras dated 7-8-1947, and signed by the Chief Secretary thereof, stating that it was decided not to retain him in service from and after 13-8-1947, and that his services would therefore be terminated as on the afternoon of 14-8-1947. He was directed, therefore, to apply for extension of leave for which he was then eligible so as to avail himself of the full period of leave which was to his credit. On receiving the order of termination of his services, he made attempts to get it cancelled, by interviewing the Chief Secretary and the Chief Minister of the Madras State at the time. But the attempts proved futile. In the course of these interviews, he says he was given the impression that the order of termination, though issued under the signature of the Chief Secretary to the Government of Madras was in fact so issued under the sanction of the Secretary of State for India, which, according to him, subsequently turned out not to be a fact. Being then under the mistaken impression, he reconciled himself to the situation and availed himself of the full period of leave and accepted the compensation which was awarded for premature termination of services and also began drawing his pension. Later on he came to know from one Shri Seshadri, another young Civilian, who was in a similar plight and who had also filed a similar suit that certain documents produced in the course of that suit showed that these orders were passed without the sanction of the Secretary of State for India. He accordingly brought these matters again to the notice of the Government and made further attempts to get the order in his case reverted. These again proved futile. He thereupon filed an application for a writ in the High Court on 7-11-1951, to quash this alleged illegal order against him. But the High Court rejected it on the ground of there having been long delay since the passing of the orders sought to be quashed. The plaintiff thereafter gave the requisite notice to the Government under S. 80, Civil P. C. and filed this suit on 13-7-1952. In the plaint he made the offer to refund the amount of compensation paid to him after making such adjustments as may be called for towards his claim for salary for the intervening period.
(3.) The plaintiffs claim is based on the contention that the termination of his services by the order dated 7-8-1947, is in violation of the statutory guarantee relating to his service under S. 240, Government of India Act,1935, which continued to be operative till the midnight of 14-8-1947, and he relies on High Commissioners for India v. I. M. Lalls. AIR 1948 PC 121 (A). To this suit both the State of Madras and the Union of, India were impleaded as defendants and their defence was substantially the same. It is to be found in para 6 of the written statement filed by the State of Madras which is as follows : "This defendant states that on the transfer of power to the newly constituted Dominion of India in pursuance of the Indian Independence Act as and from the appointed day, viz., 13-8-1947, the tenure of the service of the plaintiff came to an end and he had no legal claim to continue in service thereafter. The plaintiff was holding office only during His Majesty's pleasure. When His Majesty's Government decided to transfer its power to the Dominion of India as and from 15-8-1947, the career of the plaintiff under covenant with the Secretary of State came to a legal termination as and from 13-8-1947. It is therefore, not correct to state that there was any termination by the Government of Madras and that there has been utter lack of legality in the order passed by the said Goverment. It is further submitted that the alleged termination of the plaintiff's services was only from 15-8-1947, and that on such date the Province of Madras acting under the insrtuctions from the Government of India were competent to decline to accept the offer to continue in Service made by the plaintiff". There were other minor pleas such as estoppel, etc. which, it is unnecessary to notice at this stage. The High Court negatived the defence of the State and accepted the contention of the plaintiff and granted him the declaration prayed for.;