Judgment Kania, C.J.-The facts material to the disposal of this appeal are these. The appellant (plaintiff) belonged to the Police force in India and on the 8th July, 1925, was promoted to the post of a Deputy Superintendent of Police in the United Provinces. On the 24th August, 1938, he was appointed to act as the Superintendent of Police in place of Mr. Abdul Qasim, who was the permanent holder of the substantive reserve post of Superintendent of Police. After having acted in that way for two brief periods, he was appointed to act again from 2nd January, 1939, as Superintendent of Police, Basti District, and continued to act as such till he retired on the 1st July, 1940. During the time he acted as Superintendent of Police, he drew the salary of that post. In paragraph 4 of the plaint, he alleged that he had a legal right to be assigned in 1938 the legal character of a substantively appointed “member of the Indian Police Service”, but nevertheless completely passed through all the stages which were necessary for his being deemed in law as “substantively” appointed Superintendent of Police in accordance with the Rules and he legally became entitled to all the privileges (including those mentioned under sections 246-250 of the Government of India Act, 1935) of that post consequent on his retirement from it from 1st July, 1940. As this last appointment was not permanent, he was treated as having retired as a Deputy Superintendent of Police and his rights to pension, etc., were allowed on that footing. The plaintiff was aggrieved at the decision of the Government and sent a memorial in May, 1941, and an appeal in July, 1942. The same were not forwarded to the higher authorities by the Governor of the United Provinces, in his discretion. The plaintiff thereafter on the 20th March, 1943, gave notice under section 80 of the Civil Procedure Code and filed the present suit for a declaration that at the time of his retirement he held the legal character and status of the holder of a substantive post of Superintendent of Police on the permanent Indian Police Reserve post cadre and not as a Deputy Superintendent of Police. He also asked for a declaration that the action of defendant No.1 in withholding his memorial in May, 1941, and appeal in July, 1942, was unlawful. He also asked for a declaration that the action of defendant No.1 in withholding his memorial in May, 1941, and appeal in July, 1942, was unlawful. Several defences were raised on behalf of the defendants, but the principal one was that the plaintiff only “officiated” as a Superintendent of Police, and was never appointed and never acted in the capacity of the substantive holder of the substantive post and was therefore not entitled to the declarations asked for. The statements in paragraph 4 of the plaint were denied and it was denied that the plaintiff was deemed to have been a Superintendent of Police when he retired. In the trial Court issues (1) and (2) which only are now material for discussion, were raised in these terms. (1) Was the plaintiff substantively appointed to the post of Superintendent of Police in the Indian Police Service? (2) Whether he should be deemed to be so appointed under the law? If so, its effect. In order to appreciate the points in dispute, it is necessary to bear in mind the structure of the Police force and the Rules regulating their appointment and promotion in India. The service has been divided in two classes, which can be broadly described as Superior and Subordinate. In the Government of India Act, 1919, the Indian Police Service was not expressly referred to, but Rules were framed under section 96(b)(2) of that Act which covered all civil service including the Police service. Rules 14 and 15 of the Civil Service (Classification, Control and Appeal) Rules gave the classification of public services in India. Rule 14.-The public services in India shall be classified as follows:- (1) The All India Service (2) * * * * * Rule 15.-The All India Service shall consist of (a) Members of the Services included in Schedule One to these Rules. (b) * * * * * Schedule One to the Rules mentioned the Indian Police as coming under All Indian Service. Rule 23 runs as follows: “Save as provided by sections 99 and 100 of the Government of India Act, 1919, all first appointments to an All India Service shall be made by the Secretary of State in Council and the rules regulating recruitment to All India Services shall be made by the Secretary of State in Council”. . . (The rest of the Rule is not material). . . (The rest of the Rule is not material). Some time after the Government of India Act, 1919, was passed and the Rules were framed thereunder, the Secretary of State accepted the proposals of the Government of India for promotion of a limited number of officers from the Subordinate service to the Superior service. Paragraph 6 of his Despatch, dated the 10th September, 1925, is in these terms:- “I accept your proposals regarding the promotion from the Provincial Police Service to the Indian Police Service, viz., (1) that 20 per cent. of the Superior posts in the Indian Police Service should be filled by promotion from the Provincial Police Service.” In the United Provinces, the “Superior posts,” which included the posts of Superintendent of Police, were 60 in number and by virtue of this Despatch 12 were to be filled up by promotion from the subordinate service. Rules 1, 2 and 3 of the Indian Police Service (Recruitment) Rules made by the Secretary of State for India and published in the Gazette of India, dated the 17th December, 1927, Part I, page 1159, were in these terms: “Rule 1.-These Rules may be called the Indian Police Service (Recruitment) Rules, 1927. Rule 2.-The Indian Police Service shall be recruited by the following methods:- (a) * * * * * (b) * * * * * (c) * * * * * (d) by the promotion in accordance with paragraph 5 of these Rules on the recommendation of the local Government of members of Provincial Police Service. Rule 3.-(1) All appointments to the Indian Police Service shall be made by the Secretary of State for India in Council.” These Rules which were made under section 96(b)(2) of the Government of India Act, 1919, so far as they are not inconsistent with the Government of India Act, 1935, are in operation by virtue of section 276 of the later Act. In the Government of India Act, 1935, sections 244 and 246, expressly deal with the appointment and recruitment to the Superior Police Service. They run as follows: “Section 244. In the Government of India Act, 1935, sections 244 and 246, expressly deal with the appointment and recruitment to the Superior Police Service. They run as follows: “Section 244. (1) As from the commencement of Part III of this Act appointments to the civil services known as the Indian Civil Service, the Indian Medical Service (Civil), and the Indian Police Service (which last-mentioned service shall thereafter be known as ‘the Indian Police’) shall, until Parliament otherwise determines, be made by the Secretary of State. (2) Until Parliament otherwise determines, the Secretary of State may also make appointments to any service or services which at any time after the said date he may deem it necessary to establish for the purpose of securing the recruitment of suitable persons to fill civil posts in connection with the discharge of any functions of the Governor-General which the Governor-General is, by or under this Act, required to exercise in his discretion. (3) The respective strengths of the said services shall be such as the Secretary of State may from time to time prescribe, and the Secretary of State shall in each year cause to be laid before each House of Parliament a statement of the appointments made thereto and the vacancies therein. (4) It shall be the duty of the Governor-General to keep the Secretary of State informed as to the operation of this section, and he may after the expiration of such period as he thinks fit make recommendations for the modification thereof. In discharging his functions under this sub-section, the Governor-General shall act in his discretion. Section 246. (4) It shall be the duty of the Governor-General to keep the Secretary of State informed as to the operation of this section, and he may after the expiration of such period as he thinks fit make recommendations for the modification thereof. In discharging his functions under this sub-section, the Governor-General shall act in his discretion. Section 246. (1) The Secretary of State shall make rules specifying the number and character of the civil posts under the Crown (other than posts in connection with any functions of the Governor-General which the Governor-General is by or under this Act required to exercise in his discretion) which subject to the provisions of this sub-section are to be filed by persons appointed by the Secretary of State to a civil service of, or a civil post under, the Crown in India, and except under such conditions as may be prescribed in the rules no such post shall, without the previous sanction of the Secretary of State- (a) be kept vacant for more than three months; or (b) be filled otherwise than by the appointment of such a person as aforesaid; or (c) be held jointly with any other such post. (2) Appointments and postings to the said post (hereinafter in this Part of this Act referred to as ‘reserved posts’) shall- (a) in the case of posts in connection with the affairs of the Federation, be made by the Governor-General exercising his individual judgment; (b) in the case of posts in connection with the affairs of a Province, be made by the Governor of the Province, exercising his individual judgment. (3) All rules made under this section shall, so soon as may be after they are made, be laid before each House of Parliament and, if either House of Parliament within the next subsequent twenty-eight days on which that House has sat after any such rule has been laid before it resolves that the rule shall be annulled, the rule shall thenceforth be void but without prejudice to the validity of anything previously done thereunder or to the making of a new rule.” After the Government of India Act, 1935, came into force in 1937, the Secretary of State made the Reserved Posts (Indian Police) Rules, 1938. The undermentioned rules are relevant. The undermentioned rules are relevant. * * * * * * “Rule 2.-The posts specified in the Schedule to these Rules (hereinafter referred to as ‘Reserved posts’) shall be filled either by members of the Indian Police or by persons not being members of the Indian Police, appointed in accordance with the provisions of these Rules. * * * * * * Rule 4.-(1) Notwithstanding the foregoing provisions, the Governor or the Governor-General, as the case may be, if the exigencies of the public service so require, appoint Police officers in the Civil Service of the Crown in India to any reserved post other than the post of Inspector-General or Deputy Inspector General, or Commissioner of Police or Commandant of a Military Police Battalion. (2) Every such appointment shall be provisional only, and if the person so appointed is intended to hold the appointment for a period exceeding three months, shall be forthwith reported to the Secretary of State with the reasons for making it and if the Secretary of State so directs, the Governor-General or the Governor, as the case may be, shall thereupon cancel the appointment. (3) No person appointed to hold a Reserved post under this Rule shall be employed in the post for a period exceeding 12 months save with the sanction of the Secretary of State. Rule 5.-If the Governor-General or the Governor, as the case may be, proposes to keep any Reserve post vacant for a period exceeding three months he shall forthwith make a report to the Secretary of State of the reasons for the proposal, the period for which he proposes to keep the post vacant, the provision made for the existing incumbent of the post and whether it is proposed to make any, and if so what, arrangements for the performance of the duties of the post held in abeyance.” After the suit was filed, the plaintiff served interrogatories on the defendants, as a result of which it was elicited that out of the 12 Superior posts, which were capable of being filled up from the Subordinate service, 11 posts were filled up while one had not been done. This is also supported by the reports for the years 1938, 1939 and 1940 sent by the Deputy Secretary to the Government of the United Provinces to the Secretary to the Government of India, Home Department. (Exts.45, 46 and 47). This is also supported by the reports for the years 1938, 1939 and 1940 sent by the Deputy Secretary to the Government of the United Provinces to the Secretary to the Government of India, Home Department. (Exts.45, 46 and 47). In the interrogatories, it appears to be admitted on behalf of the defendants that between 1935-40 all the eleven posts, that were made open by the Secretary of State to the Provincial Police Service officers, were being held by such officers and that out of 5 vacancies which occurred in the senior grade of the Indian Police Reserve posts allotted to the Provincial Service from 20th April, 1937, plaintiff was appointed to officiate against the fifth vacancy from the 2nd January, 1939 to the 30th of June, 1940. From the notifications of the United Provinces Government published in the local Government Gazettes, it appears that on the 24th August, 1938, a vacancy occurred in the ranks of Indian Police on the retirement of Mr. Abdul Qasim and it was to be filled by the promotion of an officer from the Provincial Police Service. On the 5th April, 1940, the Chief Secretary to the United Provinces Government pointed out to the Government of India that a vacancy had occurred on the retirement of Mr. Abdul Qasim. He then stated: “The next officer below Mr. Rafique Ahmed, who was due for promotion, was the plaintiff, and that he had officiated as Superintendent of Police from the 8th February to 13th October, 1938, was on leave from 4th October, 1938, to 1st January, 1939, and had been officiating since 2nd January, 1939. He had a good record of service and deserved to be promoted to the Indian Police. He was due to retire from the 1st July, 1940.” The Governor agreed with the Inspector-General of Police that the plaintiff was fit for permanent promotion to the Indian Police and recommended that he may be confirmed in that vacancy (Ext.41). He had a good record of service and deserved to be promoted to the Indian Police. He was due to retire from the 1st July, 1940.” The Governor agreed with the Inspector-General of Police that the plaintiff was fit for permanent promotion to the Indian Police and recommended that he may be confirmed in that vacancy (Ext.41). As there was delay in obtaining the sanction of the Secretary of State to the permanent promotion of the plaintiff, the Chief Secretary to the Government of the United Provinces again wrote to the Government of India on the 23rd April, 1940, that pending the confirmation of the plaintiff to the post of the Superintendent of Police, the interim sanction of the Secretary of State to the “continued employment” of the plaintiff in post reserved for the Indian Police be obtained. On receipt of that letter, the Government of India wrote to the Secretary of State on the 3rd June, 1940, asking for the sanction of the Secretary of State to the continued employment of the plaintiff to the post of Superintendent of Police. This sanction was evidently required for the provisional appointment made by the Governor for a period exceeding 12 months under Rule 4 of the Reserved Posts Rules mentioned above. This fact is abundantly made clear by the heading of that letter which is in these terms: “Subject:-Appointment of the members of the United Provinces Police Service to the Reserved posts in the Indian Police for a period exceeding twelve months." The reply of the Secretary of State to this letter dated the 29th July, 1940 (Ext.40) is in these terms: ”I am directed to inform you that the Secretary of State has sanctioned the continued employment in the reserved post of Rai Sahib Durga Prasad Malhotra until he reaches the age of 55 or until a decision is reached regarding his confirmation whichever is earlier." The plaintiff admitted (Ext.23) that the Secretary of State eventually declined to confirm him to the permanent post of the Superintendent of Police. The Civil Judge, Malihabad, held against the plaintiff on the above mentioned two issues and dismissed the suit. The plaintiff filed an appeal to the Chief Court of Oudh but his appeal was dismissed. The Court, however, granted a certificate under section 205(1) of the Government of India Act, 1935, and hence the appeal to this Court. The Civil Judge, Malihabad, held against the plaintiff on the above mentioned two issues and dismissed the suit. The plaintiff filed an appeal to the Chief Court of Oudh but his appeal was dismissed. The Court, however, granted a certificate under section 205(1) of the Government of India Act, 1935, and hence the appeal to this Court. The plaintiff appeared before us in person and contended that as there was a permanent vacancy in the Superior cadre from August, 1938, he was appointed Superintendent of Police in that vacancy. In the alternative, he contended that in fact he had performed the duties of the Superintendent of Police and as there was no permanent incumbent of the reserved post, in whose place he was performing the duties, in law, he should be deemed to have been appointed as the Superintendent of Police if he was not, in terms, so appointed. In the alternative he further contended that under sections 244 and 246 of the Government of India Act, 1935, and para. 6 of the Despatch of the Secretary of State it was illegal for the defendants to keep the permanent post of Superintendent of Police vacant for over three months and their action in asking the plaintiff to perform the duties of the Superintendent of Police till his retirement should be construed by the Court as the appointment of the plaintiff to the substantive post of Superintendent of Police. The documents mentioned above in connection with the plaintiff’s service make it clear that the Secretary of State at no time had appointed the plaintiff as Superintendent of Police in the Reserved post. It is equally clear that the Governor of the United Provinces had only appointed the plaintiff “to officiate” as the Superintendent of Police, Basti. Although the word “officiate” is not used in the Government of India Act or in the Rules mentioned above, it is defined in rule (19) of the United Provinces Fundamental Rules as follows: “A Government servant officiates in a post when he performs the duties of a post on which another person holds a lien. Although the word “officiate” is not used in the Government of India Act or in the Rules mentioned above, it is defined in rule (19) of the United Provinces Fundamental Rules as follows: “A Government servant officiates in a post when he performs the duties of a post on which another person holds a lien. The Government may, if they think fit, appoint a Government servant to officiate in a vacant post on which no other Government servant holds a lien.” It is therefore clear that when the Governor of the United Provinces appointed the plaintiff “to officiate” as the Superintendent of Police, Basti, in the Notification,, he was not appointed to be the permanent incumbent of the post. Indeed, the order read with the communications addressed to the Central Government or the Secretary of State make it clear that the Governor of the Province at no time had intended to make the appointment a permanent one, because all along he had considered that the first appointment to the Indian Police was to be made by the Secretary of State. His orders making the officiating appointment were only a stop-gap arrangement till the Secretary of State decided the question of the permanent appointment to the Indian Police Service in which a permanent vacancy had occurred. On these facts it appears to me that the plaintiff cannot succeed. In order to obtain a declaration that he held the status and legal character of a permanent Superintendent of Police, the plaintiff has to produce an order of such appointment in his favour. It is not within the powers of this Court to make any such appointment. The Court can only give a declaration if the plaintiff held that character by virtue of an appointment by the appropriate authority. Relying on the wording of section 246 of the Government of India Act, 1935, read with the Rules, it was argued by the plaintiff that as he was asked to perform the duties of the Superintendent of Police till he retired, his appointment must be considered as validly made and of a permanent nature. It was argued that as he held the post from January, 1939, till 30th June, 1940, it must be construed that his appointment was not provisional and therefore it was permanent. I am unable to accept these arguments in view of the express wording of the order. It was argued that as he held the post from January, 1939, till 30th June, 1940, it must be construed that his appointment was not provisional and therefore it was permanent. I am unable to accept these arguments in view of the express wording of the order. Under section 246 of the Government of India Act, 1935, read with the rules made in pursuance thereof, the Governor of the United Provinces had the authority to make a provisional appointment for twelve months out of persons eligible to fill any vacancy in the Reserve posts. If the appointment, although provisional, was to run over twelve months, the sanction of the Secretary of State was required and that was asked for and given. Except by completely ignoring the word “officiate” in the order of appointment, for which there is no justification whatever, the order cannot be read as giving the plaintiff the substantive post permanently. If that word was not used, in the order, it might have been argued that as the nature of the appointment was not expressly mentioned in the order, it was ambiguous and the Court should construe it in favour of the plaintiff. In face of the express words used in the order, that cannot be done by the Court. Both the Courts below have held that the plaintiff’s appointment as the Superintendent of Police, Basti, from January, 1939, was in an officiating capacity. On that ground the plaintiff’s suit and first appeal failed. In its judgment the Chief Court stated as follows: “Thus these proceedings reveal that although the United Provinces Government desired that the plaintiff should be promoted permanently 10 the Indian Police, the Secretary of State did not agree to this proposal and only sanctioned the continued employment of the plaintiff in a post reserved for officers of the Indian Police. Further the Provincial Government itself never appointed the plaintiff to the post of Superintendent of Police but always appointed him to officiate in that post.” The conclusion of the trial Judge was to the same effect. I agree with the conclusion of both the lower Courts and in that view the plaintiff’s contention that he was appointed the Superintendent of Police in fact or should be deemed to have been so appointed, cannot succeed. I agree with the conclusion of both the lower Courts and in that view the plaintiff’s contention that he was appointed the Superintendent of Police in fact or should be deemed to have been so appointed, cannot succeed. The plaintiff further contended that it was illegal for the Secretary of State and the Governor of the United Provinces to keep a reserved post vacant for more than three months after the permanent incumbent retired without appointing some one else permanently in his place. In my opinion, sections 244 and 246 of the Government of India Act, 1935, on which the plaintiff relies for this purpose, do not support him. Section 244 expressly provides that appointments to the Indian Police Service have to be made by the Secretary of State. Section 246 and the Rules made thereunder authorise provisional appointments being made by the Governor-General or the Governor, as the case may be, pending appointments by the Secretary of State. The Rules safeguard against the Governor-General or the Governor keeping indefinitely vacant any reserved post, without the knowledge of the Secretary of State, when a permanent vacancy occurs. Apart from that there is no foundation for the contention that it was illegal for the Secretary of State or the defendants to omit to make a substantive appointment to any of the reserved posts after it had become permanently vacant. While under section 246 and Rule 4 it may not be open to the Governor or the Governor-General not to make a provisional appointment for over three months, after a vacancy had occurred, without the knowledge of the Secretary of State in my opinion there is nothing illegal in the Secretary of State not making a substantive appointment after a permanent vacancy had occurred for any length of time. In any event, having regard to the wording of the orders passed in respect of the plaintiff’s appointment, even if an illegality had occurred (which is not admitted), the Court cannot give the relief sought by the plaintiff. The orders appointing the plaintiff are not ambiguous in any way and therefore the argument of the plaintiff that the Court should construe the orders as intending to carry out a legal obligation rather than spell out an illegal omission, cannot be accepted. The orders appointing the plaintiff are not ambiguous in any way and therefore the argument of the plaintiff that the Court should construe the orders as intending to carry out a legal obligation rather than spell out an illegal omission, cannot be accepted. Furthermore, if the order appointing the plaintiff as an officiating Superintendent of Police is illegal and therefore void, the plaintiff’s position would not be improved as there would be no order of appointment of any sort in his favour. The result is that the appeal fails and is dismissed with costs. Separate sets of costs are allowed to the respondents. The appellant applies for leave to His Majesty in Council. The Court does not consider this a fit case for granting such leave. Fazl Ali, J.-I agree. Patanjali Sastri, J.-I agree. Mehrchand Mahajan, J.-I agree. Mukherjea, J.-I agree. V.S. ----- Appeal dismissed.