« ПретходнаНастави »
an exact particular of all advices or intelligence, and of all governortransactions and matters, coming to the knowledge of the with Sec
general Governor-General in Council and relating to the government, retary of commerce, revenues, or affairs of India (a).
III, c. 63, (a) This reproduces an enactment contained in the Regulating Act, s. 9.] 1773, by which Warren Hastings and his successors were directed to correspond regularly with the Court of Directors at home, but its re-enactment would probably not be considered necessary at the present day.
Establishment of Secretary of State. 18.—(1) His Majesty the King may, by Order in Council, Establish
ment of fix the establishment of the Secretary of State in Council and the Secrethe salaries to be paid to the persons on that establishment.
State. (2) Every such order must be laid as soon as may be before [2.1 & 22
Vict. c. both Houses of Parliament.
106, ss. 15,
16.] (3) No addition may be made to the said establishment, nor to the salaries authorized by any such order, except by a similar Order in Council to be laid in like manner before both Houses of Parliament.
(4) The regulations made by His Majesty for examinations, certificates, probation, or other tests of fitness in relation to appointments to junior situations in the civil service apply to such appointments on the said establishment.
(5) Subject to the foregoing provisions of this section, the Secretary of State in Council may make all appointments to and promotions in the said establishment, and remove any officer or servant belonging to the establishment (a).
(a) This is the enactment by which the staff of the India Office is regulated. 19. His Majesty may by warrant under the Royal Sign Pensions.
[21 & 22 Manual, countersigned by the Chancellor of the Exchequer, Vict. c. grant to any secretary, officer, or servant appointed on the 106, s. 18.] establishment of the Secretary of State in Council such compensation, superannuation, or retiring allowance as may be granted to persons on the establishment of a Secretary of State under the laws for the time being in force concerning
superannuations and other allowances to persons having held civil offices in the public service (a).
(a) This gives the staff of the India Office pensions on the civil service scale, i. e. one-sixtieth of annual salary for each year of service, subject to certain conditions and restrictions.
Indian Appointments. 20.--(1) In any regulations for the time being in force for the organization of the Indian Army provision must be made for the benefit of the sons of persons who have served in India in the military or civil service of the Crown or of the East India Company equally advantageous with those which were in force before the twentieth day of August one thousand eight hundred and sixty, and the selection of such persons is to be in accordance with regulations made by the Secretary of State (a).
(2) Except as provided by this Digest, all powers of making regulations in relation to appointments and admissions to service and other matters connected therewith, and of altering or revoking such regulations, which, if the Government of India Act, 1858, had not been passed, might have been exercised by the Court of Directors or Commissioners for the Affairs of India, may be exercised by the Secretary of State in Council.
(a) Sections 33, 34, 35, and 36 of the Government of India Act, 1858, run as follows:
*33. All appointments to cadetships, naval and military, and all admissions to service not herein otherwise expressly provided for, shall be vested in Her Majesty ; and the names of persons to be from time to time recommended for such cadetships and service shall be submitted to Her Majesty by the Secretary of State.
34. Regulations shall be made for admitting any persons, being natural-born subjects of Her Majesty (and of such age and qualifications as may be prescribed in this behalf), who may be desirous of becoming candidates for cadetships in the engineers and in the artillery, to be examined as candidates accordingly, and for prescribing the branches of knowledge in which such candidates shall be examined, and generally for regulating and conducting such examinations.
35. Not less than one-tenth of the whole number of persons to be recommended in any year for military cadetships (other than cadetships in the engineers and artillery) shall be selected according to such
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 pay, ment. 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.--(I) His Majesty may, by writing under the Royal Powers of
Crown and Sign Manual, countersigned by the Secretary of State, re
Secretary move or dismiss any person holding office under the Crown of State as to removal in India. of officers. (33 Geo.
(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. 3 & 4 Will. days after the signature thereof, be communicated to the IV, c. 85, 98. 74, 75.
Secretary of State in Council. 21 & 22
(3) Nothing in this enactment affects [any of His Majesty's 106, s. 38.]
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 irectors, 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 subse. quently 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 Govern. ment 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, bold