A member of the defence service holds office during the pleasure of the President and is, therefore, dismissible at will.

1. This is a suit against the Union of India instituted by an officer of the Indian Army for a declaration that his dismissal from service was wrongful. He seeks other reliefs also including damages and his claim for damages aggregates to Rs. 1,07,012/-. The defendant has raised various contentions. One of the contentions is that the suit is barred by limitation.

Another contention is that apart from the merits of the case the plaintiff, as a member of the defence service, held office during the pleasure of the President by virtue of Article 310 of the Constitution and was, therefore, dismissible at will. Two preliminary issues as to limitation and maintainability of the suit have been tried by me at the instance of learned counsel for the defendant. The question of limitation may conveniently be considered after the plea of maintainability is examined.

2. The suit in my judgment fails in limine and I shall only succinctly state the plaintiffs case. The plaintiff began serving the Government of India as a civilian clerk in the Indian Army Service Corps. He was enrolled as a non-combatant in July 1927. According to him he was promoted to the principal Division in April 1930 and was created a Viceroys Commissioned Officer by virtue of that promotion.

In August 1942 he was appointed Acting Head, Assistant with the equivalent rank of a substantive Subedar Major. It is his grievance that he has suffered heavily since 1942 because of sheer prejudice against him and negligence of his superior officers. He refers in his plaint to promotions granted to other officers which according to him were mysterious. In June 1946 he was awarded Older of British India (II Class) and in June 1947 he was awarded the rank of Honorary Lieutenant in the army.

A discharge order against the plaintiff with effect from 18-5-1948 was passed by the authorities on 29-5-1948 and was served on him on 5-6-1948. Before this order of discharge the plaintiff had been served with an order dated 30-1-1948 by which he was ordered to proceed to his old post as civilian clerk on permanent duty on arrival he was directed to report to the Commandant at Jabbalpore, and a requisite warrant for the purpose was issued.

It appears that the plaintiff was not willing to-go back and serve in his original post. He did not at any time report to the Commandant at Jabbalpore as it was his contention that he was not bound to do so. A notice under Section 80, Civil P. C. was served by him on the Union of India and a suit, being Suit No. 951 of 1949, for a declaration that his discharge from service was unlawful and for damages was filed by him in this Court in July 1949. That suit however was withdrawn by him with leave under Order 23.

On 4-4-1951 the plaintiff was served with an order of removal from service. That order stated that explanations given by him in the correspondence that had gone before had been found unsatisfactory and he was being removed with effect from the date of that letter from his post of civilian clerk on the ground of "continued and wilful disobedience of orders". The letter stated that the plaintiff had deliberately failed to resume his civilian appointment in the army on which he had a lien on discharge from combatant engagement. The orders challenged by the plaintiff in the suit principally are the two of discharge dated 29-5-1948 and of dismissal dated 4-4-1951.

3. Mr. K. K. Desai learned counsel for the defendant has argued that the plaintiffs claim so far as it is based on wrongful dismissal or discharge does not disclose any cause of action. It is argued that if the order of dismissal of 4-4-1951 is taken into consideration the plaintiff was a member of the defence service and his case is covered by Article 310 of the Constitution and if the order of discharge dated 29-5-1948 be taken into consideration the plaintiff would still have no cause of action against the defendant because his service was during the pleasure of the Crown.

In effect? the conten