regulations as the Secretary of State in Council may from time to time make in this behalf from among the sons of persons who have served in India in the military or civil service of Her Majesty, or of the East India Company. '36. Except as aforesaid, all persons to be recommended for military cadetships shall be nominated by the Secretary of State and members of council, so that out of seventeen nominations the Secretary of State shall have two, and each member of council shall have one; but no person so nominated shall be recommended unless the nomination be approved of by the Secretary of State in Council.' When the Government of India Act, 1858, passed, and for some years afterwards, the Indian Army (taking European and Native together) was officered in two ways. A certain number of cadets were appointed to Addiscombe, and thence, according to their success in passing the college examination, went to India in the engineers, artillery, or infantry. Others received direct cadetships, and went to India without previous training. The Act speaks of both classes alike as receiving cadetships. But the artillery and engineers were not in practice taken into account in calculating the one-tenth under s. 35. This being so, the effect of s. 35 was, roughly speaking, that one-tenth of the officers appointed to the Indian Army (exclusive of the engineers and artillery) must be the sons of Indian servants. The Act of 1860 (23 & 24 Vict. c. 100), which abolished the European Army, and which was passed on August 20, 1860, provided that 'the same or equal provision for the sons of persons who have served in India shall be maintained in any plan for the reorganization of the Indian Army.' The mode of appointment to the Native Army was meantime altered. In pursuance of this provision, an order was issued in 1862, under which the Secretary of State makes appointments to cadetships at Sandhurst, fixed at twenty annually, limited to the sons of Indian servants. The expenses of these cadets are borne by India, if their pecuniary circumstances are such as to justify the payment. Regulations as contemplated by s. 35 of the Government of India Act, 1858, have been made governing the selection, and are rigidly followed. These cadetships differ from the old ones in that they are not directly and necessarily connected with the Indian Army, for a cadet might pass from Sandhurst into the British Army and not into the staff corps. But the object is, of course, to supply the Indian Army. The word 'cadet' in the Government of India Act has no express limitation, and the present cadets appear to fall within the meaning of the term. In practice, appointments of cadets do not now go to the King. Section 34 appears to be spent, and s. 36 to be virtually repealed by the abolition of the Indian Army. The effect of the other two sections, so far as they are in force, is reproduced in the Digest. 21. (1) His Majesty may, by writing under the Royal Powers of Sign Manual, countersigned by the Secretary of State, re Crown and Secretary move or dismiss any person holding office under the Crown of State as to removal of officers. [33 Geo. in India. (2) A copy of any writing under the Royal Sign Manual III, c. 52, removing or dismissing any such person must, within eight ss. 35, 36. days after the signature thereof, be communicated to the Secretary of State in Council. 3 & 4 Will. IV, c. 85, ss. 74, 75. 21 & 22 Vict. c. (3) Nothing in this enactment affects [any of His Majesty's 106, s. 38.1 powers over any officer in the army, or] the power of the Secretary of State in Council [or of any authority in India] to remove or dismiss any such person. This is an attempt to reproduce the net result of a series of enactments, which are still in the statute book, but the earlier of which were intended to give the Crown power over servants of the East India Company, and, therefore, are not wholly applicable to existing circumstances. The saving words in square brackets do not reproduce any existing enactment, but represent the effect of the law. The Charter Act of 1793 (33 Geo. III, c. 52) enacted (ss. 35, 36) that: 35. It shall and may be lawful to and for the King's Majesty, his heirs and successors, by any writing or instrument under his or their sign manual, countersigned by the president of the Board of Commissioners for the Affairs of India, to remove or recall any person or persons holding any office, employment, or commission, civil or military, under the said united Company in India for the time being, and to vacate and make void all or every or any appointment or appointments, commission or commissions, of any person or persons to any such offices or employments; and that all and every the powers and authorities of the respective persons so removed, recalled, or whose appointment or commission shall be vacated, shall cease or determine at or from such respective time or times as in the said writing or writings shall be expressed and specified in that behalf: Provided always, that a duplicate or copy of every such writing or instrument under His Majesty's sign manual, attested by the said president for the time being, shall, within eight days after the same shall be signed by His Majesty, his heirs or successors, be transmitted or delivered to the chairman or deputy chairman for the time being of the said Company, to the intent that the Court of Directors of the said Company may be apprised thereof. '36. Provided always, . . . that nothing in this Act contained shall extend or be construed to preclude or take away the power of the Court of Directors of the said Company from removing or recalling any of the officers or servants of the said Company, but that the said court shall and may at all times have full liberty to remove, recall, or dismiss any of such officers or servants at their will and pleasure, in the like manner as if this Act had not been made, any governor-general, governor, or commander-in-chief appointed by His Majesty, his heirs or successors, through the default of appointment by the said Court of Directors, always excepted, anything herein contained to the contrary notwithstanding.' The Charter Act of 1833 (3 & 4 Will. IV, c. 85, ss. 74, 75) enacted that '74. It shall be lawful for His Majesty by any writing under his sign manual, countersigned by the president of the said Board of Commissioners, to remove or dismiss any person holding any office, employment, or commission, civil or military, under the said Company in India, and to vacate any appointment or commission of any person to any such office or employment. '75. Provided always, that nothing in this Act contained shall take away the power of the said Court of Directors to remove or dismiss any of the officers or servants of the said Company, but that the said court shall and may at all times have full liberty to remove or dismiss any of such officers or servants at their will and pleasure.' And finally the Government of India Act, 1858 (21 & 22 Vict. c. 106, s. 38), enacts that : 'Any writing under the Royal Sign Manual, removing or dismissing any person holding any office, employment, or commission, civil or military, in India, of which, if this Act had not been passed, a copy would have been required to be transmitted or delivered within eight days after being signed by Her Majesty to the chairman or deputy chairman of the Court of Directors, shall in lieu thereof be communicated within the time aforesaid to the Secretary of State in Council.' The countersignature of the Secretary of State was substituted for the countersignature of the president of the Board of Control by the Government of India Act, 1858. (See above, s. 2.) The tenure of persons serving under the Government of India, or under a local Government, is presumably tenure during the pleasure of the Crown. In the case of Grant v. The Secretary of State for India in Council, L. R. 2 C. P. D. 455 (1877), the plaintiff, formerly an officer in the East India Company's service, appointed in 1840, and subsequently continuing in the Indian Army when the Indian military and naval forces were transferred to the Crown, brought an action against the defendant for damages for being compulsorily placed by the Government upon the pension list, and so compelled to retire from the army. It was held on demurrer that the claim disclosed no cause of action, because the Crown acting by the defendant had a general power of dismissing a military officer at its will and pleasure, and that the defendant could make no contract with a military officer in derogation of this power. In the case of Shenton v. Smith (1895), A. C. 229, which was an appeal from the Supreme Court of Western Australia, it was held that a Colonial Government is on the same footing as the Home Government with respect to the employment and dismissal of servants of the Crown, and that these, in the absence of special contract, hold their offices during the pleasure of the Crown. The respondent in that case, having been gazetted without any special contract to act temporarily as medical officer during the absence on leave of the actual holder of the office, was dismissed by the Government before the leave had expired. It was held that he had no cause of action against the Government. In the case of Dunn v. The Queen (1896), 1 Q. B. 116, it was held that servants of the Crown, civil as well as military, except in special cases where it is otherwise provided by law, hold their offices only during the pleasure of the Crown. In this case a petition of right had been presented, and the case set up by the suppliant was that Sir Claude McDonald, Her Majesty's Commissioner and ConsulGeneral for the Niger Protectorate in Africa, acting on behalf of the Crown, had engaged him in the service of the Crown as consular agent in that region for a period of three years certain, and he claimed damages for having been dismissed before the expiration of that period. It appeared that Sir Claude McDonald himself held office only during the pleasure of the Crown. Mr. Justice Day held that contracts for the service of the Crown were determinable at the pleasure of the Crown, and therefore directed a verdict and judgement for the Crown. The decision was upheld by the Court of Appeal. Subsequently Mr. Dunn brought an action against Sir Claude McDonald, presumably for breach of contract, but the action was dismissed, and the doctrine that an agent who makes a contract on behalf of his principal is liable to the other contracting party for a breach of an implied warrant of his authority to enter into the contract was held inapplicable to a contract made by a public servant acting on behalf of the Crown. Dunn v. McDonald (1897), 1 Q. B. 401, 555. See Jehangir v. S. of S. for India, I. L. R. 27 Bom. 189; Voss v. S. of S. for India, I. L. R. 33 Cal. 669. It is the practice for the Secretary of State in Council to make a formal contract with persons appointed in England to various branches of the Government service in India, e. g. education officers, forest officers, men in the Geological Survey, and mechanics and artificers on railways and other works, and many of these contracts contain an agreement to keep the men in the service for a term certain, subject to a right of dismissal for particular causes. Whether and how far the principles laid down in the cases of Shenton v. Smith and Dunn v. The Queen apply to these contracts, is a question which in the present state of the authorities cannot be considered free from doubt. Tenure during pleasure is the ordinary tenure of public servants in England, including those who belong to the permanent civil service,' and the service of a member of the Civil Service of India is expressly declared by his covenant to continue during the pleasure of His Majesty. Tenure during good behaviour is, subject to a few exceptions (e. g. the auditor of Indian accounts: see below, s. 30), confined to persons holding judicial offices. But judges of the Indian high courts are expressly declared by statute to hold during pleasure: see below, s. 97. The difference between the two forms of tenure is that a person holding during good behaviour cannot be removed from his office except for such misconduct as would, in the opinion of a court of justice, justify his removal; whilst a person holding during pleasure can be removed without any reason for his removal being assigned. See Anson, Law and Custom of the Constitution (second edition), pt. ii. p. 213. See also Willis v. Gipps, 6 State Trials N. S. 311 (1846), as to removal of judicial officers. PART II. REVENUES OF INDIA. tion of 22. (1) The revenues of India are received for and in the Applicaname of His Majesty, and may, subject to the provisions revenues. embodied in this Digest (a), be applied for the purposes of the Vict. c. 95, government of British India alone. s. 27. 21 & 22 106, 83. 2, 42.] (2) There are to be charged on the revenues of India alone— Vict. c. (a) all the debts of the East India Company; and (b) all sums of money, costs, charges, and expenses which, 21 & 22 Vict. c. if the Government of India Act, 1858, had not been 105. (c) all expenses, debts, and liabilities lawfully contracted and incurred on account of the government of India (b); and (d) all payments under the Government of India Act, 1858. (3) For the purposes of this Digest the revenues of India include (a) all the territorial and other revenues of or arising in British India; and (b) all tributes and other payments in respect of any territories which would have been receivable by or in the name of the East India Company if the Government of India Act, 1858, had not been passed; and (c) all fines and penalties incurred by the sentence or order of any court of justice in British India, and all forfeitures for crimes of any movable or immovable property (b) in British India; and |