K M RAJAGOPALAN Vs. STATE OF MADRAS

JUDGEMENT

(1.) The plaintiff was a member of the Indian Civil Service, who joined duty at Madras in October 1837. He was Sub-Collector and Joint Magistrate at Dindigul and on 2-6-1947, he went on leave. While on leave at Madras, he received a Memorandum issued by the Government of India, Home Department, dated 18-61947, Ex. P-2, asking him to communicate within ten days of the receipt of the letter whether he wished to continue in service of the Government in view of the withdrawal of the Secretary of State's control over His Majesty's services consequent on the intention to transfer power from the British Government to Indian hands, or whether he desired to retire from service. He sent a reply to the Joint Secretary, Home Department, Government of India, with a copy of the same to the Chief Secretary to the Government of Madras, on 2-7-1947, Ex. P-3, expressing his desire to continue to serve the Madras Government.

(2.) On 9-8-1947, he received a demi-official communication from Mr. Scott Brown, Chief Secretary to the Government of Madras, Ex. p-6, dated 7-8-1946, informing him that the Government have decided not to retain him in service after 15-81947, that his services would be terminated on the afternoon of the 14-8-1947, and his present leave v;ouid be automatically converted Into leave preparatory to retirement, that he might also apply for the extension of leave, if eligible, and that a formal communication would Issue to him shortly from the Government of India terminating his services as from 14-8-1947 afternoon. It is the case of the plaintiff that thereafter he had an interview with the then Chief Minister of Madras, Sri O. P. Ramaswami Reddiar and also the then Chief Secretary, Mr. W. Scott Brown, and was given to understand by both of them that the sanction of the Secretary of State for India had been obtained for the termination of his services and nothing could therefore be done. He was granted leave to which he was entitled, which extended upto 10th April 1949. The plaintiff's case is that, having been assured by the highest authorities in Madras that the termination of his services had been ordered by, or with the consent of, the Secretary of State for India, he believed those statements that the Secretary of State for India who was the only authority empowered to remove the plaintiff from service, had issued the said orders and therefore accepted the compensation paid to him. He, however, did not receive any formal orders from the Government of India, as promised in the letter of 7-8-1947, Ex. P-6. He thereafter met another member of the Indian Civil Service, Mr. R. M. Sesha-dri, whose services had similarly been terminated and he came to know from Mr. Seshadrl that the latter had instituted a suit for a declaration that the order terminating his services was illegal and void. On 8-6-1949, he wrote Ex. P-12 to the Premier, Government of Madras, asking for reinstatement, followed by another letter of 20-6-1949, Ex. P-13, to which the Chief Secretary to the Government of Madras replied by Ex. P-14, dated 11-81949 that the Government regretted their inability to reinstate him in service. He sent two communications to the Government of Madras and to the Government of India on 15-4-1951 and 7-10-1951, respectively and his case is that he did not receive any reply from either. But the Government of India appears to have sent a reply on 10-11-1951, Ex. P-15, informing him that the Government of Madras was authorised to terminate his services with effect from 15-8-1947 and granting him the compensation and stating that there was no need for any formal communication from the Government of India to him direct. The plaintiff's case is that the order of 7-8-1947, which was passed by the Government of Madras terminating his services as and from the afternoon of 14-81947 was null and void and the result is that in law he must be deemed to continue in service. The plaintiff is prepared to refund the amount of compensation received by him under the circumstances. He filed a writ petition No. 679 of 1951, in the High Court, but the same was dismissed on the ground of delay without expression of any opinion on the merits of the case. The plaintiff therefore asks for a : decree declaring that the order issued by the Chief Secretary to the Government of Madras on 7-8-1947 is null and void and Inoperative and that the plaintiff must be deemed to continue in the Indian Civil Service.

(3.) The first defendant is the State of Madras represented by its Chief Secretary and the second defendant is the Union of India. Separate written statements have been filed. Their contentions are similar. The gist of the defence is that on 30-41947, the Viceroy of India made an announcement. Ex. P-1, regarding the grant of compensation for premature termination of the services, which stated that as the transfer of power would mean premature termination on that date of a, career under the ultimate authority of Hist Majesty's Government and that of the British Parliament, the Government of India undertook that those members of the Secretary of State's services who continued to serve under the Government of India after the transfer of power would do so on their present terms and that provisions would be made in the Treaty to deal with the matters and that, as regards those that were not invited to continue to serve under the Government of India after the transfer of power, suitable compensation would be payable; that, in pursuance of this announcement, the Government of India circularised the officers of the Secretary of State's services by a circular, Ex. P-2, dated 18-6-1947; that though the plaintiff informed his desire by Ex. P-3 to continue to serve the Madras Government, the latter decided not to invite the plaintiff to be in service after the transfer of power on account of past record and issued the letter, dated 7-8-1947, Ex. F-6 and the Government of Madras Issued the necessary release certificates and he was also granted a compensation of 4500 and that the Government of India by their telegram, dated 14-8-1947 to the Government of Madras, Ex. P. 10, intimated that they had no 'objection to the Provincial Government's proposal to terminate the services of the plaintiff. Their contentions are (1) that on the transfer of power to the newly constituted Dominion of India in pursuance of the Indian Independence Act as from 15-81947, the tenure of service of the plaintiff came to an end and he had no legal claim to continue in service thereafter, and that as the plaintiff was holding the office during His Majesty's pleasure, his career under the covenant with the Secretary of State came to a legal termination as and from 15-8-1947; (2) that the alleged termination of the plaintiff's services was only from 15-8-1847, and that on such date the Province of Madras acting under the instructions of the Government of India were competent to decline to accept the offer to continue in service made by the plaintiff and the formal communication by letter dated 7-81947, Ex. P-6, was only in pursuance of the instructions of the Government of India; (3) that the plaintiff never questioned the authority of the Province of Madras for terminating his services and, after accepting the compensation without any protest, it would not be open to him to ask for any relief; and (4) that according to Section 10(1), Indian Independence Act, the provisions relating to the appointment to Civil posts under the Crown in India by the Secretary of State were not to continue in force after 15-8-1947; the clear effect of those provisions was to terminate the services of officers of the Secretary of State's services and the decision of the Province of Madras was therefore valid and based on legal authority.