Mehar Singh, C.J:— This is an appeal by Mr. Gurdit Singh Aulakh appellant from the order, dated December 15, 1965, of a learned Single Judge dismissing his petition under Article 226 of the Constitution, in which petition the appellant sought the quashing of the order, dated September 10, 1965, of the respondent, the State of Punjab, removing him from the office of the member of a Tribunal constituted under section 12 of the Sikh Gurdwaras Act, 1925 (Punjab Act 8 of 1925), hereinafter to be referred as the ‘Act.’

2. On March 26, 1962, by Notification No. 432-GP, the respondent constituted the Tribunal under sub-section (1) of section 12 of the Act and by the same notification appointed its President and two members, one of whom was the appellant, according to sub-section (2) of that section. The notification merely says that the appellant was appointed a member of the Tribunal. There is nothing more said in regard to the nature of the tenure of the appellant. By another Notification No. 434-GP of the same date, according to sob-section (4) of that section, the appellant's remuneration was fixed at Rs. 2,000/- per mensem. He was at the time also President of the Sikh Gurdwaras Election Enquiry Board and the notification stated that he was not to be entitled to any extra remuneration for that office. On September 10, 1965, by Notification No. 1053-Gurdwaras, the appellant was removed from the membership of the Tribunal. The notification reads— “In exercise of the powers conferred by sub-section (2) of section 12 of the Sikh Gurdwaras Act, 1925, and all other powers enabling him in this behalf, the Governor of Punjab is pleased to remove Shri Gurdit Singh Aulakh, Advocate, Amritsar, with immediate effect from the membership of the Tribunal, constituted with Punjab Government, Home Department, General (Gurdwaras) Notification No. 432 GP, dated the 26th March, 1962. After the removal of the appellant by that notification, the respondent issued another notification of October 13, 1965, which ran thus— “The Governor of Punjab is pleased to order that Shri Gurdit Singh Aulakh, formerly President of the Sikh Gurdwaras Election Enquiry Board, Amritsar, and member of the Sikh Gurdwaras Tribunal, Chandigarh, will be treated as a whole time temporary Government Servant and governed by the Civil Services Rules for the purposes of leave, travelling allowance and daily allowance.” On November 4, 1965, the appellant moved a petition under Article 226 praying that a writ in the nature of certiorari be issued calling for the records of the respondent relating to the impugned order and, after a perusal of the same the impugned order be quashed, that a writ in the nature of mandamus be issued directing the respondent to treat the appellant as continuing in his post as a member of the Tribunal, and that any other suitable writ, direction or order, as deemed fit in the circumstances, may be issued. The ground given by the appellant in the petition is that he was holding a Civil post under the respondent within the meaning of Article 311 of the Constitution being governed by the Punjab Civil Services Rules in the matters of leave and discipline, and that his removal from the membership of the Tribunal amounts to punishment, which contravenes Article 311 because before removing him from the membership of the Tribunal there was no compliance with the provisions of that Article. The respondent in its return took the position that the appellant was treated as a whole time temporary Government servant governed by the Punjab Civil Services Rules for the purposes of leave, traveling allowance and daily allowance only and that he was not governed by the Punjab Civil Services Rules in the matter of discipline, nor was he holding a Civil post under the Punjab Government. In the circumstances it was said that Article 311 was not attracted to the case of the appellant.

3. When the case was argued before Narula, J., the counsel for the parties agreed upon these facts:—

1. that as a member of the Tribunal the appellant held a Civil post,

2. that civil post was under the respondent, that is, the State of Punjab,

3. that, except for the purpose of leave, travelling allowance, and dearness allowance, the appellant was not governed by the Punjab Civil Services Rules and particularly was not so governed by those rules in matters of discipline,

4. that the Tribunal was constituted for an indefinite period,

5. that the budget provision for meeting the expenses of the Tribunal was made year to year,

6. that the financial year in respect of which budget provision had been made for the Tribunal had not yet run out when the appellant was removed from its membership,

7. that immediately a successor of the appellant was appointed in the vacancy caused by his removal, and

8. that no charge was ever framed against the appellant, no enquiry was held against him, no allegation was made against him and no fault was found with him.

4. The learned Judge was of the opinion that the appellant held a temporary Civil post under the respondent, that his appointment as member of the Tribunal was not for any definite period, that it was co-terminus with the life of the Tribunal, and, in any case, it was not for a fixed term of years or months, that it was agreed before him by the parties that the specific Punjab Civil Services Rules were not applicable to him, that the word ‘remove’ in the impugned notification has not been taken from the Civil Services Rules, which, it was admitted before the learned Judge, were inapplicable to him, that his removal did not spell out any evil consequences and thus did not amount to a penalty or punishment attracting Article 311, that there was nothing on the record to show that there was any intention on the part of the respondent to punish him, that the action taken against him was not on any ground personal to him, and that all that he was entitled to was one month's notice, or one month's salary in lieu of notice before removal, being a temporary Government Servant. The learned Judge, therefore, dismissed the petition of the appellant on December 15, 1985.

5. Some five days before that, that is to say on December 10, 1965, a Division Bench consisting of Falshaw, C.J and Khanna, J. in 1Dalip Singh v. State of Punjab, 1966 Current Law Journal (Pb.) 251, held that “there is no reason for not believing that in fact the Department of Law and Order and the Miscellaneous Department administered through the Home Secretary fall within the scope of the Home Minister's portfolio.” In the Rules of Business of the Punjab Government, Part I, 1961 Edition, rules 2 and 3, which are relevant in this case, read…

“2. The business of the Government shall be transacted in the Departments specified in the Schedule annexed, and shall be classified and distributed among those departments as laid down therein.

3. The Governor shall, on the advice of the Chief Minister, allot among the Ministers the business of the Government by assigning one or more Departments to the charge of a Minister;

“Provided that nothing in this rule shall prevent the assigning of one Department to the charge of more than one Minister.”

6. In the Schedule to the Rules head 22 is ‘Miscellaneous’ of which the official head, according to rule 4, is the Home Secretary, and item 16 under it reads— “Sikh Gurdwaras Act, 1925, and Rules made thereunder, including constitution, powers, maintenance and organisation of Tribunal, establishment under Section 12 of the Act, or of a Judicial Commission established under section 70 thereof.” When on June 7, 1865, on the constitution of the Ministry, Ministers were appointed, one of them was Mr. Gurdial Singh Dhillon, who, according to Notification No. Cabinet 213-65 of that date, was allocated these portfolios— “1. Transport, 2. Rural Electrification, 3. Elections, 4. Parliamentary Affairs.” There is nothing in that notification about the Minister who was to be incharge of the Miscellaneous head in the Schedule to the Rules of Business. In the wake of the judgment of the Division Bench in Dalip Singh's case, so it appears, Notification No. 23-Cabinet-66 of February 2, 1966, was published by the respondent in the Punjab Government Gazette of February 12, 1966. The notification reads— “In partial modification of notification No. Cabinet 213-65, dated the 7th June, 1935, the Governor of Punjab, on the advice of the Chief Minister, is pleased to direct that, with effect from the 7th June, 1865, the work of the administration of the Sikh Gurdwaras Act, 1925, and rules made thereunder, including constitution, powers, maintenance and organisation of Tribunal, establishment under section 12 of the Act, or of a Judicial Commission established under section 70 thereof, shall stand allocated to Shri Gurdial Singh Dhillon, Transport and Elections Minister.”

7. The appellant filed the appeal under clause 10 of the Letters Patent against the order of the learned Single Judge after the date of that notification on March 4, 1966. Among other grounds, the appellant has taken this as ground 15 in the grounds of appeal— “that the order of removal was invalid also for the reason that no Minister was competent to deal with the work of the administration of the Sikh Gurdwaras Act, 1925, until February 2, 1966 On February 2, 1966, the Government purported to direct that with effect from 7th June, 1965, the work of administration of the Sikh Gurdwaras Act, 1925, and Rules made thereunder shall stand allocated to Shri G.S Dhillon, Transport and Elections Minister. The said notification is illegal and invalid and unconstitutional because it seeks to confer power on the Minister with retrospective effect and seeks to Legalese the illegal acts of the Minister between June 7, 1965, and February 12, 1966. The notification is unconstitutional and illegal and against the business rules because it seeks to split a Department between two Ministers which is against the Business Rules. No separate Department for administration of the Sikh Gurdwaras Act has been created and the allocation is illegal and ultra vires.” In ground 16 of the grounds of appeal the appellant has further alleged that the only matter placed before and considered by Mr. Gurdial Singh Dhillon was whether the appellant was to be offered a whole time job as a member of the Tribunal, and that no Minister ever applied his mind to the question of his removal. On April 18, 1966, the appellant's counsel moved an application for permission to raise additional grounds in the appeal, but later on April 23, 1966, another application was moved under Order 41, rule 27 of the Code of Civil Procedure for admission of additional evidence at the stage of appeal. In those applications the appellant points out, among other matters, that a Division Bench of this Court in Dalip Singh's case held that according to the Business Rules, Miscellaneous Departments be taken to have been allocated through the Home Secretary to the Home Minister, that the Miscellaneous Department had not been allocated to any Minister whatsoever, so the appellant could not know who was the Minister Incharge till that decision, and that after the notification of February 12, 1866, on inquiries, the appellant found (i) that the order leading to his removal was passed by Mr. Gurdial Singh Dhillon when the Department had not been allocated to him but would be with the Home Minister according to the decision in Dalip Singh's case, (ii) that the file was never submitted to the Chief Minister before the issuing of that order as required by the Rules of Business, (iii) that the only matter that was placed before Mr. Gurdial Singh Dhillon was whether the appellant was to be given a whole time job about which the Minister said that he was not inclined to offer any such job to the appellant, and (iv) that the question of his removal was neither considered by Mr. Gurdial Singh Dhillon nor by any other Minister. The appellant sought to produce the notification of Febiuary 12, 1966, as additional evidence and to rely upon grounds arising out of and in connection with the issuance of that notification. On May 13, 1966, reply to the application under Order 41, rule 27 of the Code of Civil Procedure as made by the Deputy Commissioner, Gurdwara Elections, on behalf of the respondent, in which the issuance of the notification of February 12, 1966 has been admitted. It is, however, stated that there is no Miscellaneous Department in the Punjab State, and that administration under the Act is, among the Miscellaneous Departments entered under that head in the Schedule to the Rules of Business. It is further stated that the Elections Department, including administration under the Sikh Gurdwaras Act, was previously allotted to the Home Minister but when for Gurdial Singh Dhillon became Minister for Transport and Elections, it was allotted to him. It is clearly stated that the order regarding the removal of the appellant was passed by Mr. Gurdial Singh Dhillon in his capacity as Minister Incharge of that Department.

8. The appellant has taken no chances and thinking that the additional grounds taken by him in appeal and not urged before the learned single Judge may not be allowed to be raised in this appeal under clause 10 of the Letters Patent, he has filed Civil Writ No. 876 of 1965 challenging the leablity of the order of his removal from membership of the Tribunal also on the ground that the order of his removal was not made by any Minister competent to do so according to the Rules of Business. This petition was filed by him on April 30, 1966, of course the other grounds of attack are also repeated in it, the Justification for this petition, according to the appellant, is that a new ground of attack against the impugned order has been provided by the facts revealed because of the issuance of the notification of February 12, 1966, by the respondent. In the return of the respondent to this petition the position taken is that the appellant was not appointed for the duration of life of the Tribunal but he was appointed as a purely temporary Government servant for certain purpose. This is repeated in the return at more than one place, but it is not quite explained either in the return or subsequently at the stage of arguments as to for what ‘certain purpose’ was the appellant appointed a temporary Government Servant. After stating that the Elections Department, including the work of the administration of the Act was allocated to the Transport and Elections Minister, Mr. Gurdial Singh Dhillon it has further been said that “it has been the convention from the very beginning to consider the above-mentioned administration included in the Elections Department and no indication to its separate allotment to the portfolio of any Minister has ever been made before.” It is then pointed out that the notification of February 12, 1966, has been issued merely as a clarification for removal of doubts because the Elections Department, including the work of the administration of the Act for all purposes, was already allocated to the Transport and Elections Minister, Mr. Gurdial Singh Dhillon. In reply to the main averments of the appellant in his writ petition it has been stated that he was treated as a purely temporary Government servant for certain purposes, was not holding a civil post under the respondent, and was not a regular Government servant at all. Then it is said that he was never appointed for the life of the Tribunal but was a purely temporary Government servant and governed by the Punjab Civil Services Rules for the purposes of leave travelling allowance and dearness allowance only and not in the matter of discipline. It is also clearly stated in this return that the question of offering a whole time job to the appellant or removing him from service was examined and necessary decision was taken in the matter, obviously by the Transport and Elections Minister, but it is pointed out that the Minister consulted the Chief Minister before the order of removal of the appellant was passed.

9. The only other factual matter to which reference need be made is the affidavit of the Deputy Commissioner. Gurdwara Elections, dated December 3, 1965, filed on behalf of the respondent in the first, petition by the appellant out of which this appeal under clause 10 of the Letters Patent has arisen, and in this affidavit it is stated with reference to the Tribunal that ‘its term is being extended from year to year and not for more than a year at a time,’ but the appellant has in his application, made under section 151 of the Code of Civil Procedure subsequent to the date of the affidavit, stated clearly that is a wrong statement and he prayed that the respondent be directed to produce the record in support of any such assertion. No such record appears to have been produced before the learned single Judge and to none such record has any reference been made during the hearing of this appeal.

10. The appeal and the second petition of the appellant have been heard together. The learned counsel for the appellant has advanced three arguments to show that the impugned order of removal of the appellant from membership of the Tribunal cannot be sustained. The first of those arguments is that the order of removal of the appellant has not been passed by any Minister having power to do so and consequently must be quashed. The learned counsel points out that although the order is duly authenticated according to sub-article (2) of Article 166 of the Constitution, but he contends that it contravenes sub-article (3) of that Article inasmuch as the order has not been made pursuant to and under the Business Rules framed by the Governor in accordance with that sub-article. He then refers to rules 2 and 3 of the Rules of Business, Part 1, and urges that the head ‘Miscellaneous’ in the Schedule to those rules and particularly item 16 under that head relating to the administration of the Sikh Gurdwaras Act and the Rules was not allocated to any Minister until the notification of February 12, 1966. And he attacks the retrospective operation of that notification saying that no such effect could be given in law to such a notification. He presses that even though the order is duly authenticated within the terms and scope of sub-article (2), it still cannot be sustained if it does not comply with the Rules of Business made under sub-article (3) of Article 166. In support of this he relies upon 2Emperor v. Sibnath Banerji, A.I.R 1945 P.C 156, 3Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal, U.P, A.I.R 1961 S.C 1381, 4Godavari Shamrao Parulekar v. The State of Maharashtra, A.I.R 1964 S.C 1128, 5Jagannath Misra v. State of Orissa, A.I.R 1966 S.C 1140, 6Shyamaghana Ray v. State, A.I.R 1952 Orissa 200, 7Susan George v. State, A.I.R 1957 T.C 209, and 8Shambhu Nath Ghosh v. Bejoy Lakshmi Cotton Mills Ltd., A.I.R 1959 Cal. 532 but those are all cases in which a certain statement was required by law to be made as a condition precedent before the impugned order could have validity, and in the present case no such matter arises. The learned counsel, however, urges that the none-compliance of rules 2 and 3 of the Business Rules, Part 1, is equally fatal to the validity of the order as an omission to state a condition precedent or a defect in that respect. It is obvious that the two matters do not stand parallel. In this respect he has made reference to the 9State of State Of Bihar v. Rani Sonabati Kumari, A.I.R 1961 S.C 221, in which their Lord ships have observed that “authorities have, no doubt, laid down that the validity of the order may be questioned on grounds other than those set out in the Article Article 166(2), but we do not have here a case where the order of the Government is impugned on the ground that it was not passed by the proper authority.” These cases, except the last one are, therefore, not helpful to advance the argument on the side of the appellant but in view of What has been observed by their Lordships in the last mentioned case, all that has to be seen is whether the impugned order has or has not been made by the proper authority. No doubt initially on June 7, 1965, there was no specific mention in the notification allocating Departments to different Ministers that item 16 under the head ‘Miscellaneous’ in the Schedule to the Business Rules, Part I, was allotted to any particular Minister. But an affidavit has been sworn on behalf of the respondent in the appellant's Civil Writ No. 876 of 1965 that it was the continuous convention that item was in the allocation of the Minister to whom the Department of Election was given. There is no reason to doubt the correctness of this averment in that affidavit.

11. In fact some what a similar affidavit was accepted by their Lordships of the Supreme Court in Godavari Shamrao Paruleker's case. Once that affidavit is accepted, this argument loses force. A similar matter came in for consideration of their Lordships in 10Bachhittar Singh v. State of Punjab, A.I.R 1963 S.C 395, and while the order in question in that case was held to have been passed by the proper Minister, their Lordships after holding so proceeded to observe—

“Apart from that we may refer to rule 4 of the Rules of Business of the Punjab Government, which reads thus:—

‘The Council shall be collectively responsible for all executive orders issued in the name of the Governor in accordance with these Rules whether such orders are authorised by an individual Minister on a matter pertaining to his portfolio or as the result of discussion at a meeting of the Council, or howsoever otherwise.’

Thus the order passed by the Chief Minister, even though it is on a matter pertaining to the portfolio of the Revenue Minister, will be deemed to be an order of the Council of Minister's. So deemed its contents would be the Chief Minister's advice to the Governor, for which the Council of Ministers would be collectively responsible. The action taken thereon in pursuance of rule 8 of the Rules of Business made by the Governor under Article 166(3) of the Constitution would then be the action of the Government.”

12. In the present case, in view of the observations of their Lordships, the order made by the Transport and Elections Minister, Mr. Gurdial Singh Dhillon, will be deemed to be the order of the Council of Ministers, and hence not open to attack in the manner in which the learned counsel for the appellant has presented his argument that it is an order not made in compliance with rules 2 and 3 of the Business Rules, Part 1, and hence contravenes sub-article (3) of Article 166. Thus the order of removal of the appellant, firstly, on the affidavit on behalf of the respondent, has been made by Mr. Gurdial Singh Dhillon as Minister-in-charge of Elections, and administration of item 16 under head ‘Miscellaneous’ concerning the Act and Rules under it has always been by continuous convention been allocated to the Minister-in-charge of Elections and so the order has been made by the Minister having authority to do so, and secondly, it is deemed to be the order of the Council of Ministers and so validly made. The learned counsel has also contended that the notification of February 12, 1966 is invalid because there is no power to issue such a notification allocating a Department retrospectively to a Minister in an attempt to validate invalid orders made by him. The reply of the learned counsel for the respondent is that under Article 166(3) the Governor has the legislative power to make law in the shape of Rules of Business for the convenient transaction of the business of the State and for the allocation among Ministers of so ch business, and if in exercise of such legislative power the Governor has issued the notification of February 12, 1966, its operation as a retrospective legislation is as immune from attack as an expressly provided retrospective operation of any other legislation. But this argument is not sound because even if the argument is accepted without deciding that matter that the Governor has legislative power under Article 166(3) and can exercise that legislative power by making rules having retrospective effect, it does not mean that a notification issued in accordance with such rules can be given a retrospective effect, for a notification is not itself a rule under Article 166(3) but is issued in pursuance of a rule made under that sub-article. So the argument of the learned counsel for the appellant is unexceptional that the notification of February 12, 1966, cannot retrospectively validate of any invalid order has been made. This, however, does not effect the substance of the matter. The reason is that it is now stated that the order has merely been as a measure of clarification and statement of an existing state of affairs, which, on the affidavit on behalf of the respondent, has already been accepted above, and further, because the impugned order is deemed to be an order of the Council of Ministers under rule 4 of the Rules of Business, Part II, 1960 Edition, and hence is an order made by a proper authority. This argument on the side of the appellant, therefore, does not succeed.

13. The second argument that has been urged on behalf of the appellant by his learned counsel is that the appellant's removal from the membership of the Tribunal is contrary to the provision of the Act. Section 12 of the Act as it originally stood included sub-section (5) which read……….

“(5) The Local Government may by notification remove any member of a Tribunal, other than the President,…

(i) if be refused to act or becomes in the opinion of the Local Government incapable of acting, or unfit to act, as a member, or

(ii) if he has absented himself from more than three consecutive meetings, of the Tribunal or

(iii) if be is an undischarged insolvent.”

14. This sub-section of Section 12 of the Act was omitted by the Government of India (Adaptation of Indian Laws) Order, 1937. The Act appears in Schedule VI to that Order. The learned counsel for the respondent contends that since sub-section (5) of section 12 of the Act was thus omitted and the Punjab Civil Services Rules applied to the appellant, so his status and position is to be considered in relation to those Rules. He then refers to rule 1.2 of the Punjab Civil Services Rules, Volume 1, 1963 Edition, to point out that the appellant's case falls under categories (4) and (5) which are:—

(4) holders of special post; and

(5) Any other Government Servant or class of Government Servants to whom the competent authority may, by general or special order, make them applicable.”

15. Those rules apply to those categories of Government servants. Now it has throughout been the consistent case of the respondent that the Punjab Civil Services Rules do not apply to the appellant. It has been said that those rules apply because of a specific notification in regard to leave, travelling allowance, and dearness allowance, but it has already been shown that the notification with regard to travelling allowance and dearness allowance, applying the rules to the appellant, was issued after his removal. So the appellant's case cannot fall under category (5) of rule 1.2 The learned counsel for the respondent has then fallen back on category (4) and says that the appellant falls in that cotegory. Rule 1.4 in the same volume says that “These rules shall not apply to…… (ii) any person for whose appointment and conditions of service special provisions is made by or under any law for the time being in force.” The learned counsel for the respondent contends that since sub-section (5) of section 12 of the Act has been omitted, there was no special provision made by or under any law in force, on the date of the removal of the appellant, concerning his conditions to service, and hence this rule is not attracted with the result that the only matter left is that the appellant is the holder of a special post and thus governed by the Punjab Civil Services Rules.

16. Clause 12(d) of the Government of India (Adaptation of Indian Laws) Order, 1937 provides that “no repeal effected by this Order shall dffect the operation of sub-paragraph (2) of paragraph fifteen of the Government of India (Commencement and Transitory Provisions) Order, 1936” and paragraph 15(2) of the latter order says…

“15(2). Until other provision is made under the new Act, the conditions of service applicable to any person or any class of persons appointed or to be appointed to serve his Majesty in a civil capacity in India shall be the same as were applicable to that person or, as the case may be, to persons of that class immediately before the commencement of Part III of the new Act.”

17. So in spite of the omission of sub-section (5) of section 12 of the Act because of the Order of 1937, it is kept alive by clause (12)(d). of that Order, and paragraph 15(2) of the Order of 1916, until other provision is made under the Government of India Act, 1935, and obviously if not made under that Act, afterwards made under the provisions of the Constitution. In the present case there is no manner of doubt that the appellant holds a civil post under the respondent. The remunerations of the President and the members of the Tribunal is charged to the Consolidated Fund of the State. The respondent has repeatedly urged that the Punjab Civil Services Rules do not apply to the appellant. Any particular rules that have been applied to him, have been so applied after his removal. There is no notification that the Punjab Civil Services Rules are to apply to the members of the Tribunal. In these circumstances, the learned counsel for the appellant very rightly urges that sub-section (5) of section 12 of the Act still continues to govern the nature of the tenure of a member of the Tribunal such as the appellant. The respondent having throughout taken the stand that the Punjab Civil Services Rules do not apply to the appellant cannot turn round now to rely upon rule 1.2 category (4), and besides as pointed out, no notification has been issued that those Rules apply to members of the Tribunal. In North-West Frontier Province v. Suraj Narain Anand, A.I.R 1949 P.C 112 it was held that a provision prescribing circumstances under which services may be terminated cannot be regarded as otherwise than condition of service. So removal of a member of the Tribunal according to sub-section (5) of section 12 is a part of his conditions of service. The case 12Gian Singh v. State of Punjab, A.I.R 1962 S.C 219, was a somewhat parallel case to the present. In that case the appellant was an officiating Tehsildar and was dismissed by an order of the Financial Commissioner made in October 1953 in exercise of his powers under the Punjab Tehsildar Rules, 1932, framed under section 9, read with section 28, of the Punjab Land Revenue Act, 1887. The question for determination was whether the Punjab Tehsidari Rules, 1932, were in operation at the date of dismissal and whether the Financial Commissioner was the competent authority to order the dismissal in view of rule 2.14 of the Punjab Civil Services Rules, Volume I. After the enactment of Government India Act 1935, Section 9 of the Punjab Land Revenue Act, 1887, was amended by the Government of India (Adaptation of Indian Laws), Order, 1937, and the power of the Financial Commissioner to make rules under section 9 was abrogated, and, similarly, section 28 of the Punjab Land Revenue Act, 1887, was also amended and the power to make rules to regulate appointments, duties, emoluments punishment and the like of offences described in that section was taken away from the Financial Commissioner and was entrusted to the Provincial Government. Their Lordships observed:—

“Undoubtedly by the amendment of section 9, the Financial Commissioner was deprived of the power to make rules for appointment and removal of Tehsildars and Naib Tehsildars, and on account of the repeal, except as to transactions past and completed, the power may in the absence of a provision to the contrary, be considered as if it had never existed. But the vitality of the Tehsildari Rules and of the powers of the authorities competent thereunder after the Government of India Act, 1935, was enacted, rested upon certain provisions made by virtue of the authority conferred by that Act. By section 310 of the Act to facilitate the transition from the Government of India Act, 1915, and from the provisions of Part XIII of the Act, of 1935 to the provisions of Part II power conferred upon His Majesty by Order-in-Council among others to direct that the provisions of the Government of India Act, 1935, shall, during such limited period as may be specified in the order, have effect subject to such adaptations and modifications as may be so specified. In exercise of this power, on July 3, 1936, the Government of India (Commencement and Transitory Provisions) Order, 1936, was promulgated and by clause 15(2) it was provided…(This clause has already been reproduced above). By clause 12(d) of the Adaptation of Indian Laws Order, 1937, issued in exercise of authority granted by section 293, it was provided, in so far as it is material; that:—

‘No repeal effected by this order shall affect the operation of sub-paragraph (2) of paragraph fifteen of the Government of India (Commencement and Transitory Provisions) Order, 1936.’

18. By the combined operation of clause 15(2) of the Commencement and Transitory Provisions Order, 1936, and the Adaptation of Indian Laws Order, 1937, the conditions of service applicable to Civil Servants continued to remain unaltered, until, other provisions were made under the Government of India Act, 1935. Again, the Adaptation of Indian Laws Order, 1937, expressly provided by clause 9 that the rules framed under the Act, adapted or modified… shall not be rendered invalid. By that clause which provided:—

‘The provisions of this order which adapt or mondify Indian Laws so as to alter the manner in which, the authority by which, or the law under or in accordance with which, any powers are exercisable, shall not render invalid any notification, order, commitment, attachment, by-law, rule or regulation duly made or issued, or anything duly done, before the commencement of this order’…

‘Notwithstanding the abrogation of the powers of the Financial Commissioner to frame rules, the Tehsildari Rules, 1932, remained in force.

And by clause 10 which provided:—

‘Save as provided by this Order all powers which under any law in force in British India, were immediately before the commencement of Part III of the Government of India Act 1935, vested in or exercisable by, any person or authority shall continue to be so vested or exercisable until other provision is made by some legislature or authority empowered to regulate the matter in question.’

19. The authority of the Financial Commissioner under the rules which remained in force by virtue of clause 9 was exercisable except as provided by the Adoption of Indian Laws Order, 1937. By section 241(2) of the Government of India Act, 1935, the conditions of service, in the case of persons serving in connection with the affairs of a Province, were to be such as may be prescribed by roles made by the Governor, or by persons authorised to make rules for that purpose. But this provision was, till other provisions were made, subject to clause 15(2) of the Commencement and Transitory Provisions Order, 1936. Clause 7 of the Adaptation of Indian Laws Order on which reliance was placed by counsel for the appellant in support of his contention that the Governor alone could exercise the powers of dismissal under the rules because he was the corresponding authority, does not also assist the appellant. The clause applies only to those cases where an authority competent at the date of passing of any Indian Law, to exercise any powers or authorities or discharge any functions ceased to exist and a corresponding new authority was constituted by or under any part of the Government of India, Act, 1935, the clause did not apply where only the powers of an authority were vested in another authority, the former authority did not otherwise ceasing to function. The conditions of service of civil servants having remained unaltered even after the Government of India Act, 1935, was brought into operation by virtue of the commencement and Transitory Provisions Order, 1936, and the Adaptation of Indian Laws Order having made express provision saving the rues as well as the authority granted under the rules to the Financial Commissioner, the order of the Financial Commissioner dismissing the appellant from service was not unauthorised”.

20. An argument as in the present case was then submitted to their Lordships and their Lordships go on to observe—

“Counsel submitted that in any event, fresh rules governing the civil services in the Punjab having been framed in 1941 by the Government of the Province of Punjab the Tehsildari Rules, 1932, even if they were not superseded by the amendment made by the Adaptation of Indian Laws Order 1937, in the Punjab Land Revenue Act, 1887, stood expressly repealed, and the powers of the Financial Commissioner to dismiss a Tehsildar could not thereafter be exercised. But the plea that fresh rules were framed in 1941 in supersession of the Punjab Tehsildari Rules, 1932, was not advanced in the High Court. In 1941, fresh Civil Services Rules applicable to the Punjab were undoubtedly promulgated; it is, however, unnecessary to consider whether under the Punjab Civil Services Rules, 1941, the Governor alone was competent to dismiss from service a public servant of the Provincial Service or Subordinate service or officers holding special posts or any other Government servant or class of Government servants to whom those rules applied. It was expressly enacted in Rule 1.4 that the Civil Services Rules were not to apply to any person for whose appointment and conditions of service special provision was made by or under any law for the time being in force. Special provision did in fact exist for the appointment and conditions of service of Tehsildars under the law for the time being in force and those rules art not shown to have been superseded or abrogated by the Civil Services Rules.”

21. The position, so far as the appellant is concerned, is exactly the same. sub-section (5) of section 12 of the Act provided special conditions of service in regard to the removal of a member of the Tribunal and those provisions continued to exist and it has not been shown that those provisions have been superseded or abrogated by the Punjab Civil Services Rules and it has also not been shown that the latter rules have been applied to the members of the Tribunal. In view of the decision in Gian Singh's case sub-section (5) of section 12 of the Act still governs the conditions of service of the members of a Tribunal such as the appellant. I he appellant has not been removed on any of the grounds stated in that sub-section. It is obvious then that the removal of the appellant from membership of the Tribunal has been contrary to the provisions of the Statute, that is to say sub-section (5) of section 12 of the Act. The learned counsel for the respondent, however, points out that this is a ground which was not urged before the learned Singe Judge and, therefore, is not available in an appeal under clause 10 of the Letters Patent; 13Kapur Singh v. Deputy Custodian General, New Delhi, 1957 P.L.R 52, and the 14State of Punjab v. Bijay Singh, A.I.R 1963 Punjab 330 (F.B), but this is not a new ground that is taken by the appellant, it is a new argument in support of a ground already taken by him that his removal from the membership of the Tribunal is not according to law and such an additional argument can be urged in an appeal like this 15Hira Lal-Anant Ram v. Sherumal-Chaira Mal, A.I.R 1926 Lah. 113.

22. There remains the last argument by the learned counsel for the appellant to be considered. The order appointing the appellant a member of the Tribunal, as pointed out said no more that he was so appointed. The appointment of the Tribunal was obviously either to the point of time where it disposed of all the work coming to it or where it was dissolved by the respondent under sub-section (1) of section 12 of the Act. Neither contingency occurred at the time of the removal of the appellant. In fact immediately a successor was appointed in his place as a member of the Tribunal. The notification of the respondent made on October 30, 1965, describing the appellant's tenure of service ‘as a whole time temporary Government servant and governed by the Punjab Civil Services Rules for purposes of leave, travelling allowance and daily allowance was apparently issued sometime after the removal of the appellant from the membership of the Tribunal. In the circumstances there is no basis for the stand on the side of the respondent that the appellant was a whole time temporary Government Servant. The conclusion of the learned Single Judge is correct that the appointment of the appellant as a member of the Tribunal was co-terminus with the life of the Tribunal in a sense the Tribunal itself is a temporary body inasmuch as its existence can come to an end if there is no work left with it, or if its dissolution takes place under sub-section (1) of section 12 of the Act, but, till such a contingency comes about, its President and members continue to hold office. So the appellant was a member of this temporary Tribunal for its lifetime whether that ended because of no work or because of its dissolution. Until that contingency occurred, he could only be removed on the grounds as in the sub-section (5) of section 12 of the Act, but that, as has been stated, has not happened.

23. The learned Single Judge has applied rule 5.9(b) of the Punjab Civil Services Rules, Volume II, 1960 Edition, treating the appellant a temporary Government servant whose service was liable to be terminated on one month's notice or on payment of one month's pay in lieu of notice. The learned counsel for the respondent has also stressed that rule applies to the appellant because, in any case, he was holding a temporary civil post no matter that there was no limitation that he was not to hold it necessarily to the end of the life of the Tribunal.

24. He has also, therefore, relied upon rule 5.9(a) to support the dismissal of the petition of the appellant. But that rule cannot possibly be applied to the present case because the Punjab Civil Services Rules do not apply to the appellant and there is no other agreement or contract between him and the respondent where under his contract of employment, such as it is, is terminable on one month's notice. The learned counsel for the appellant has referred to 16Jagdish Mittar v. The Union of India, and 17Moti Ram Deka v. General Manager, North East Fronter Railway, A.I.R 1964 S.C 449 and 600, in which cases their Lordships have observed that in the case of temporary Government servants, the terms of contract or service rules may provide for the termination of the services on notice of a specified period, or on payment of salary for the said period, and if in exercise of the power thus conferred on the employer the services of a temporary or probationer servant are terminated, it may not necessarily amount to removal. The learned counsel contends that this implies that where there is no such contract or no such terms or conditions of service in the rules, the service of a temporary Government servant cannot be terminated except perhaps with the coming to an end of the post itself. But those were cases in which in fact the rules provided that the temporary Government servant's service was terminable on notice for a specified period or on payment of salary in lieu of notice for such period. He presses that unless there is such express term in the contract or in the rules of service applicable even in the case of a temporary Government servant his employment cannot be terminated except perhaps, as stated, by the abolition of the post itself. The proposition propounded by the learned counsel as such may not pass, but the learned Judge in his judgment cites this passage from 18Parshotam Parshotam Lal Dhingra v. Union Of India, A.I.R 1958 S.C 36,— “Again where a person is appointed to a temporary post for a fixed term of say five years his service cannot, in absence of a contract or a service rule permitting its premature termination, be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, inefficiency or other disqualification and appropriate proceedings are taken under the rules read with Article 311(2)”, and in the same case there is another observation to the same effect in this manner— “An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put to an end to during the period unless he is, by way of punishment, dismissed or removed from the service.” The learned Judge is of the opinion that the appellant's was not an appointment for a specified period in the sense that it was not an appointment for a fixed term of years or months and, therefore, the observations of their Lordships do not apply to this case. And yet the appellant's is a case which is not of a temporary Government Servant whose service can be terminated whimsically at any moment without any reason whatsoever. His appointment has been for the duration of the life of the Tribunal and so long as the Tribunal subsists, there is no manner of removing its member in a summary way, there being no contract or service regulation applying for such removal, and, in fact, sub-section (5) of section 12 of the Act providing removal only on specific grounds; none of those grounds has existed in this case. In the circumstances of this case, although the appointment of the appellant as a member of the Tribunal, which, as stated, must in itself be considered a temporary Tribunal, was not for a fixed term or a specified period literally, but his is a case which, in substance, is fully covered by the observations of their Lordships in Parshotam Lal Dhingra's case in as much as he had a right to bold the post of the member of the Tribunal during the life, time of the Tribunal and when his service is put an end to before that contingency arrived, it obviously has resulted in a penal consequence in as much as the appellant loses the benefits of service although the Tribunal continues to exist. In this way by his removal the appellant has been penalised. In a sence it can also be said that the appointment of the appellant as a member of the Tribunal was for a specified period, the definition of that period being the life time of the Tribunal and so long as the Tribunal continued, his removal could only have one consequence and that was to deprive him of the benefits of service as a member of the Tribunal between the data of his removal and the date of the end of the life of the Tribunal. So the removal of the appellant, in the circumstances of the case, had a penal consequence. Even if Article 311 were not to apply to him, the order of the respondent terminating his services as a member of the Tribunal cannot possibly be maintained. It has however, been already pointed out that the order of removal of the appellant has been contrary to the provisions of sub-section (5) of section 12 of the Act. I Even if the appellant is treated as a temporary Government servant holding the civil post of the member of the Tribunal, which itself is a temporary Tribunal in the sense in which it has already been explained, there is no contract or rules under which the services of the appellant could be terminated before the expiry of the term of the Tribunal itself whether for want of work or by dissolution. The only power of removal in sub-section (5) of section 12 of the Act has not been exercised. Now, assuming for a moment that sub-section (5) of section 12 of the Act is no longer in existence and applicable to the case, then the position is this, that there is neither contract nor any rule under which the services of the appellant could be terminated by the respondent except at the time of the expiry of the life of the Tribunal itself. This, of course, is not taking into consideration cases of misconduct. Howsoever the case of the appellant is considered, in the circumstances as explained, the order of the respondent removing the appellant from the order of the respondent removing the membership of the Tribunal cannot be sustained and that order is consequently quashed, accepting the appeal of the appellant as also his Civil Writ No. 876 of 1969. There is, however, no order in regard to costs in either.

25. I entirely Agree.

D.K Mahajan, J.

26. Appeal allowed.