Although the argument is not in itself conclusive I find some support for the

Although the argument is not in itself conclusive i

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Although the argument is not in itself conclusive, I find some support for the views I have expressed in the wording of Article 135(1) itself to the effect that no member of the services mentioned in Article 132 (other than the armed forces) shall be dismissed by an authority subordinate to that which has power to appoint a member of that service of equal rank. The wording of that Article clearly contemplates that within any of the specified services persons of different ranks may be appointed by different authorities. If in every case only the appropriate Commission had the
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Page 9 of 25 GOVERNMENT OF THE FEDERATION OF MALAYA v SURINDER SINGH KANDA power to make appointments then one would have expected Article 135(1) to read that no member of any service should be dismissed except by the Commission having jurisdiction over that service. I am not, of course, overlooking the extraordinary fact which was disclosed in evidence at the trial of the present case that since 31st August, 1957, superior police officers have in fact been appointed by the Police Service Commission and not by the Commissioner of Police. Unless the Government can persuade some Court in the future to take the view that the Police Service Commission has done so by reason of some legally permissible delegation of power to it by the Commissioner of Police, the conclusions at which I have arrived, and at which I hasten to add we have been invited to arrive, would seem to support the corollary that none of these functionaries appointed by the Police Service Commission have been properly appointed and this may cast some doubt on their legal capacity to exercise the powers and enjoy the protection accorded by law to Police Officers. That, however is beside the point. I am bound to state the law as I believe it to be without regard to any unfortunate consequences that may follow. Before departing from this part of the case there are two observations I would wish to make. The first is that I have not been unmindful of the Attorney-General's argument based on the case of R Venkato Rao v Secretary of State for India in Council [1937] AC 248 that apart from the provisions of the Constitution Government servants hold their offices during the pleasure of the Paramount Ruler and therefore their services may be terminated at any time. It is very likely that since the 1960 amendments there is such a power in the Paramount Ruler although it is not altogether clear whether there was such a power prior to 1960. The question, however, does not arise here for there is no question of Inspector Kanda having his services terminated by the exercise of any such power or purported power. What [*128] happened here, and it is the only thing that happened, is that he was dismissed for misconduct by the Commissioner of Police under the powers vested in him by the Police Ordinance and there has never been any suggestion that his services were in fact terminated by anybody else or in any other way.
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