JUDGMENT

Varadachariar, J. - This is an appeal by a plaintiff whose suit against the North-West Frontier Province Government has been dismissed by the Courts below on a preliminary finding that the suit was not maintainable. The only point for determination by this Court is whether this finding is consistent with the true interpretation and effect of Ss. 240 and 243, Constitution Act. The facts relevant at this stage may be briefly stated. The petitioner was appointed a Sub-Inspector in the police force of the North-West Frontier Province in March 1928, and in April 1938, he was dismissed on certain charges by the Deputy Inspector-General of Police of that Province. His appeals to the Inspector-General of Police and to the Provincial Government failed and he instituted this suit praying for a declaration that the order of dismissal was illegal and void and that he ought still to be regarded as continuing in office. He also claimed arrears of pay and, in the alternative, damages for wrongful dismissal. The plaint impugned the validity of the order of dismissal on various grounds; but, in the view we take of the case, it is unnecessary to refer to all of them. It is sufficient to state that one of the grounds urged was that as the plaintiff had been appointed by the Inspector-General of Police, the Deputy Inspector-General who was only a subordinate authority was not competent to dismiss him. Though the papers relating to the appointment are not on the record (as the suit has been disposed of on a preliminary point) it may be pointed out that the plaint alleged that the plaintiff had been appointed by the Inspector-General of Police and the written statement admitted the correctness of this allegation. It is common ground that the order of dismissal dated 4th April 1938, was passed by the Deputy Inspector-General of Police. The Provincial Government contested the suit, maintaining that the dismissal was valid and proper and that in any event the plaintiff had no remedy by way of suit. They asked for and obtained a preliminary decision on the question of the maintainability of the suit.

2. Founding himself on the declaration in S. 240(1), Constitution Act, and the decision of the Judicial Committee in ('37) 24 A.I.R. 1937 P.C. 27 : 166 I.C. 513 : I.L.R. (1937) Mad. 517 : 64 I.A. 40 (P.C.), Rangachari v. Secretary of State and ('37) 24 A.I.R. 1937 P.C. 31 : 166 I.C. 516 : I.L.R. (1937) Mad. 532 : 64 I.A. 55 (P.C.), Venkata Rao v. Secretary of State that every person who holds any civil post under the Crown in India holds office during his Majesty's pleasure, the learned Subordinate Judge proceeded to hold that there was nothing in S. 243, Constitution Act, or in the provisions of the Police Act (5 of 1861) or the rules framed thereunder to restrict the Crown's unrestricted power of dismissal, so as to give the aggrieved officer a remedy by civil action. The appellate Court confirmed this decision, with the following observation:

Our interpretation of Sec. 243, Government of India Act, is that if anything were contained in the Police Act, then S. 240, Government of India Act, would not apply to that extent. There is however nothing in the Police Act which restricts the power of the Government to dismiss a police officer at its pleasure.

3. It is apparent that the bearing of sub-s. (2) of S. 240, Constitution Act, on the case was not sufficiently realized in the Courts below, though the plaint and the grounds of appeal laid stress on the circumstance that the plaintiff had been dismissed not by the authority that appointed him, but by a subordinate authority. The argument before this Court mainly rested on this ground. It may be convenient to mention at this stage how the order of dismissal came to be passed by the Deputy Inspector-General. Under S. 7, Police Act (5 of 1861), as it stood prior to its adaptation by the Adaptation of Indian Laws Order, 1937, the appointments of all police officers below a certain grade were (under such ru