This is an appeal by special leave from an order of the Federal Court of India1 dated the 4th day of May, 1945, which varied a decree of the High Court of Judicature at Lahore dated the 27th March, 1944.

The respondent, who had been a member of the Indian Civil Service since 1922, instituted the present suit on the 20th July, 1942, against the Secretary of State for India, challenging the validity of an order by the latter dated the 10th August, 1940, which purported to remove the respondent from the Indian Civil Service.

The Secretary of State for India was the original appellant in this appeal, but after the hearing before this Board in July last, the Indian Independence Act, 1947, came into operation on the 15th August, 1947. By section 15(1) of the Act, the present appeal by the Secretary of State was abated, and by section 15(2) the appeal was continued by the High Commissioner. By sub-section (3) of that section, the expression “the High Commissioner” is defined for the purposes of the section. The High Commissioner for India and the High Commissioner for Pakistan have accepted that they should be treated as appellants in place of the Secretary of State for India by virtue of section 15. Their Lordships find it convenient, however, for the purposes of their opinion, to continue to refer to the Secretary of State as the defendant in the suit and appellant in the Federal Court and before the Board.

In the plaint, the respondent claimed (1) a declaration that the order of removal was ultra vires of the defendant, (2) that the order was not passed in due process of law and was wrongful, illegal and of no consequence whatever, (3) that he was still a member of the Indian Civil Service, and had a right to continue in it, and to hold office from which he was removed by the illegal order of the defendant, and (4) that as a member of the Indian Civil Service he was entitled to all rights secured to him by the covenant and rules and regulations issued from time to time by the appropriate authority.

The suit was originally instituted in the Court of the Subordinate Judge, 1st Class, Lahore, but it was transferred to the High Court, and was ordered to be heard by a Division Bench as a Court of first instance. After trial, the High Court, on the 27th March, 1944, granted the present respondent a decree to the extent of granting a declaration that the order removing him from office was wrongful, void, illegal and inoperative and that he was still a member of the Indian Civil Service; the High Court also gave a certificate under section 205(1) of the Government of India Act, 1935, that the case involved substantial questions of law as to the interpretation of the Act of 1935. On an appeal by the present respondent, the Federal Court, by a majority, on the 4th May, 1945, varied the decree of the High Court by ordering that,

“In place of the declaration that the order removing the plaintiff from office was wrongful, void, illegal and inoperative and that the plaintiff is still a member of the Indian Civil Service there shall be substituted a declaration that the plaintiff Mr. M. Lall was wrongfully dismissed from the Indian Civil Service on the 4th June, 1940.”

The Federal Court remitted the suit to the High Court to take such action in regard to any application by the respondent for leave to amend to claim damages and to the assessment of such damages as to the High Court should seem right.

The main questions raised in this appeal relate to the proper construction of section 240 of the Government of India Act, 1935, and their Lordships propose to deal with these in the first instance. Some further narrative of the facts in the case is necessary for this purpose. The respondent was appointed to the Indian Civil Service in 1922, and on the 1st September, 1922, he entered into a covenant with the Secretary of State in Council. Two observations only occur on this document, viz., that the respondent’s service was

“to continue durin