Mallick, J.:— This is a suit for a declaration that the plaintiff is still a member of the West Bengal Fire Service, for recovery of arrears of salary and for other reliefs.

2. During the war in 1943, Bengal Fire Service was created by the Government of Bengal. It was a part of the A.R.P Organisation of the Civil Defence Branch. The plaintiff was appointed a Station Officer, Bengal Fire Service for Barisal. He was to be on probation for three months and was to be confirmed to the post on the expiry of the term, provided his work was found to be satisfactory. The department was temporary and the plaintiff's office could not but be temporary. In December 1945 he was confirmed as a Station Officer, Barisal, till February 28, 1956. His term of appointment was extended from time to time. After the partition of Bengal, the plaintiff opted for service under the Government of West Bengal and by a telegram dated September 10, 1947, by the Regional Officer, Barrackpore, the plaintiff was directed to appear before the Director of Posting. It appears from a Circular Memorandum issued by the Chief Secretary of the West Bengal Government, that the postings of those officers who have opted for West Bengal were to be tentative till they are finally absorbed. The policy of the Government in that behalf was yet to be formulated. These officers, however, were allowed to draw their old pay. The period of all temporary posts was extended by a Notification dated September 26, 1947 till November 1, 1947. The plaintiff was appointed a temporary Sub-Officer from October 1, 1947 in the Calcutta Fire Service and posted at Central Avenue station. By a Notification dated November 25, 1947, the Government extended the period of temporary officers till February 29, 1948. By an order dated April 21, 1950, a number of provisional appointments were made by the Director of West Bengal Fire Service. The plaintiff was by this order provisionally appointed Sub Officer, Lillooah. In or about this period, the West Bengal Fire Service Directorate was created under the West Bengal Fire Service Act passsed and published on March 30, 1950. From a Memo dated April 29, 1950, issued from the office of the Director, Fire Service, it appears that the various offices under the said Directorate would be filled up with effect from April 18, 1950, by various persons in the existing personnel. From the list annexed to the Memo, it appears that the plaintiff was provision’ ally selected lor the office of a Sub-Officer and an intimation to that effect was given to the plaintiff by a communication dated May 4, 1950. Prior to this provisional selection, the plaintiff was required to appear before a Selection Committee, set up by the Government. It appears that another committee was appointed to review the appointment. This committee found the plaintiff unsuitable. On June 30, 1950 notice was served on the plaintiff that his service would be terminated on the expiry of July, 1950. By the same letter the plaintiff was offered an office of lower rank, acceptance of which must be intimated before July 8, 1950. The plaintiff did not intimate his acceptance of the office of lower rank. The plaintiff naturally felt aggrieved by the decision of the Government contained in the notice of June 30, 1950 and made representations for re-consideration. The plaintiff not having intimated his decision to accept office of lower rank, the plaintiff was informed by a letter of August 3, 1950, that he had been discharged from West Bengal Fire Service from August 1, 1950. Thereafter the plaintiff addressed various appeals and representations and not having received any satisfaction, ultimately filed this suit on August 20, 1955.

3. In the plaint after setting out the facts, the plaintiff contended that the order terminating service was void, being in violation of the Constitution and it was a case of malafide exercise of power. The substantial reliefs claimed are:

(i) a declaration that the order dated 3rd August, 1950 purporting to dismiss the plaintiff from the raid West Bengal Fire Service was void and inoperative;

(ii) a declaration that the plaintiff was and still is a member of the said Fire Service under the defendant and that he is entitled to remain such member under the defendant till his retirement and that the plaintiff is further entitled to all his arrear salary, allowance, promotions and increments.

4. There are other consequential reliefs like the recovery of arrears of salary. In the written statement the defence taken is that the plaintiff all along held a temporary appointment in a department which was itself temporary. His appointment in April/May, 1950 as Sub-Officer under the Directorate of Fire Service was only provisional. It is contended that his services were duly and properly terminated and he was not entitled to any hearing or any opportunity to show cause against the order of termination of service. All allegations of misconduct and malafide exercise of power have been denied. In paragraph 18 it is disputed that the order of termination of service is void. In paragraph 19 it is pleaded that there was no pro per or binding contract of service between the plaintiff and the defendant. In paragraph 20 the validity or sufficiency of the notice under section 80 of the Code of Civil Procedure has been disputed. In paragraph 21 the plea of limitation is taken,

5. On these pleadings the following issues were settled:—

1(a). What is the effect of the letter dated August 3, 1950 as mentioned in paragraph 16 of the plaint?

(b). Was the order of dismissal and|or discharge referred to in the said paragraph wrongful?

2. Is there a proper or binding contract of service between the plaintiff and the defendant?

3. Is the claim of the plaintiff barred by limitation?

4. Is the plaintiff entitled to the declaration as claimed in prayers (a) and (b) of the plaint?

5. To what other reliefs, if any is the plaintiff entitled?

6. The plaintiff tendered his own evidence. The defendant did not tender any oral evidence. The documents disclosed by the parties and embodied in the brief of documents were tendered and by consent of parties were marked as exhibit, formal proof having been dispensed with. The entry in the Pay Roll showing the amount of pay the plaintiff was drawing at the time of termination of service was also tendered and marked as an exhibit by consent. The plaintiff dispensed with formal proof of the entry. This is all the evidence on record.

7. Mr. K.C Mookerjee, learned counsel for the defendant submitted that the terms of the declaration claimed in prayer (c) are indefinite. It is not clear whether the plaintiff seeks a declaration that he was a ‘Station Officer’, as originally appointed in 1945, or that he was a ‘Sub-Officer’, as appointed in May 1950, or that he was a ‘leader’, which post was offered to him. The declaration claimed is that he is a member of the Fire Service under the Government—in what office has not been stated in prayer (c). It is clear that the plaintiff cannot claim the post of a ‘leader’ which he never accepted. It is, however, not clear from prayer (c) whether the plaintiff claims to be a ‘Station Officer’, or ‘Sub-Officer’, Mr. Mookerjee's grievance is well-founded. It may be that the learned pleader who drafted the plaint kept the point deliberately vague. It will, therefore, be necessary to consider whether the plaintiff is entitled to a declaration of being a member of the Fire Service of the defendant either in the capacity of ‘Station Officer’ or ‘Sub-Officer’. I wish to record my view that in a declaratory suit the terms of the declaration should be clear and precise and the terms of the declaration claimed in the instant case fall short of this requirement. I leave it at that.

8. It is convenient at this stage to consider two points of law raised by the defendant to defeat the plaintiff's claim. The first point is that in order to claim the Constitutional protection under Art. 311, the plaintiff must have a proper and binding contract of service with the defendant. Such a contract of service must comply with the formalities prescribed by Art. 299 of the Constitution, that is, it must be executed on behalf of the President or the Governor by an officer empowered in that behalf. Admittedly in the instant case there is no such contract of appointment in the prescribed form. It is contended by Mr. K.C Mookerjee that in the absence of such a contract in the prescribed form, the plaintiff is precluded from obtaining a declaration from the court that the plaintiff is a Government servant. Mr. Mookerjee has cited a decision of this Court in the case of Subodh Ranjan v. Major N.A.O' Callagan, (1) reported in A.I.R 1953 Cal. 319 in which Bose, J. held that a person v, hose service agreement is not in conformity with the requirement of section 175(3) of the Government of India Act, 1935 and Art. 299 of the Constitution, is not a servant of the Union of India and as such he cannot take advantage of Art. 311(2) of the Constitution. His Lordship held the provisions of the section and the Article to be mandatory and not directory.

9. Mr. Arun Mukherjee, learned counsel appearing for the plaintiff, contended that the defendant having admitted in the written statement that the plaintiff was a Government servant at all material times prior to the termination of his service, the defendant is precluded from contending that the plaintiff was not a Government servant. Further, having regard to the law of pleading as embodied in 0. VI, r. 8 and 0. VIII, r. 2 of the Code, this question of the contract of appointment being invalid by reason of non-compliance with the provisions of Art. 299 of the Constitution, should not be allowed to be raised, unless this point is specifically taken in the written statement. This point of invalidity of contract under Art. 299 of the Constitution has not been specifically taken in the instant case and hence the defendant should not be allowed to take this plea. Reliance is placed on the decision of the Supreme Court in the case of Kalyanpur Lime Works Ltd. v. State of Bihar, (2) reported in A.I.R 1954 S.C 165, in support of this contention. In the cited case the dispute raised in the written statement was whether the terms of lease agreed to by the parties were final or not, that is, whether in fact there was a concluded contract. No defence was raised that the contract was not enforceable because of non-compliance with the provisions of section 30 of the old Government of India Act. The Supreme Court held that the question of the contract not being enforceable cannot be raised because in the written statement the only plea taken is whether there was a concluded contract or not. Dispute raised in the written statement was as to the factum of contract and not its validity. The Supreme Court pointed out that the question whether there was in fact an agreement is different from the question whether the contract was valid in law. If the defendant wanted to raise an issue as to whether the contract is not enforceable because of some legal defect, it will not be enough to deny the factum of contract, but it would be necessary to plead specifically the legal defects which invalidates the contract. In the instant case, it is pleaded in paragraph 19 of the written statement that ‘there was no proper or binding contract of service between the plaintiff and the defendant’. This averment is not very satisfactory. But it does indicate that though there was a contract of employ-ment in the instant case, it was defective in law. At the time of raising the issues, Mr. K.C Mookerjee indicated that he would raise a plea under Art. 299 of the Constitution in the absence of a formal contract of employment satisfying the provisions of Art. 299 of the Constitution. There being admittedly no such formal contract in the instant case, there is no question of surprise. I do not think that the Supreme Court decision covers the instant case. On the present pleadings, I would not be justified in debarring the defendant from raising this plea. Nor do I think that the admission by the defendant of the fact that the plaintiff was actually a Government servant disentitles the defendant from raising this issue. Allowing this issue to be raised does not, however, mean its acceptance, and I am now to consider how far this plea can be sustained, having regard to the provisions of law and decided cases.

10. The question has to be decided, first, whether the employment of the Government servant is contractual, second, whether such employment requires a formal document in writing as prescribed by Art. 299 of the Constitution and third, whether in the absence of such a formal employment the Government servant loses his status of being a Government servant and forfeits the protection guaranteed by the Constitution under Art. 311(2). The point raised is very serious and deserves very careful consideration. It may be granted that the origin of Government service is contractual. There is an offer and acceptance in every case. Once appointed, however, the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statutory Rules framed and altered unilaterally by the Government. But does service under the Government require a formal document in every case? Except in the case of covenanted service or in a very small number of cases where there is employment on special terms, there is no formal document. Usually Government service starts with nothing more than a letter of appointment and except in the case of a microscopic minority, there is nothing more. After appointment, the name of all employees is included in the Civil List and in the, case of some officers, the appointments are gazetted. Their salary is paid out of the consolidated fund. This state of affairs has been continuing ever since the Government of India was taken up by the Crown after the Sepoy Mutiny. This is so notorious that the court is bound to take judicial notice of this fact as also the fact that the successive legislatures, British Parliament and the Constituent Assembly, who are responsible for the framing of the Indian Constitution, knew of this state of affairs. In my judgment, the various provisions of the Constitution must be read in this background. The second point to be noted is that the terms of service and emolument of a Government servant are not determined by contract. They are to be found in statutory Rules and can be varied unilaterally by the Government without the consent of the Government servant concerned. Regarding the rights of a Government servant there are Constitutional provisions which, on the one hand, make it terminable at the pleasure of the President of the Union or Governor of a State and, on the other, restricts that pleasure by express Constitutional provisions— which restrictions amount to very valuable constitutional guarantees. Arts. 310 and 311 contain these constitutional provisions regarding Government servants. The relationship between the Government and its servants is clearly not like an ordinary contract of service between a master and a servant. It is something different. In the case of a Government servant, even though Government service starts with a contract of employment, after appointment the Government servant acquires a status defined and regulated by law and rules by the Constitution itself. The relationship between the Government and its servants was never intended to be regulated nor in fact is regulated by contract. The stringent provisions as to contract as found in Art. 299 have, therefore, to be applied with a great deal of caution in the case of Government) servants. Looked at from this point of view and in the background of facts hereinbefore stated, I think that the Constitution framers never intended that there must be a formal contract of employment in the case of every Government servant and such formal contract must comply with the formalities prescribed by Art. 299 of the Constitution. It was never intended by the framers of the Constitution that in the absence of a formal contract of employment in the prescribed form, a Government servant, who was drawing his pay out of the consolidated fund, would not be entitled to Constitutional guarantee under Art. 311(2) or would not be entitled to enforce his right in a court of law. In the case of H.S Bedi v. Government of Patiala and East Punjab, (3) reported in A.I.R 1953 Pepsu, 196, Teja Singh, C.J makes the following observation at page 199:

“I am prepared to concede that when a Government offers a job to a person and the latter accepts it or when a person applies for a job and the Government agrees to appoint him on that job, there comes into existence a sort of agreement between the Government on one hand and the person concerned on the other, but I am not convinced whether such an agreement would come within the purview of the term ‘contract’ used in Art. 299. The most important thing to note in this connection is that all persons employed by a State or the Union, except those appointed under clause (2) of Art. 310, hold office during the pleasure of the President or the Governor, as the case may be, and not by virtue of any kind of contract. This is definitely laid down in clause (1) which says—

Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union, or of an all-India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor or, as the case may be, the Rajpramukh of the State.

11. Then taking into consideration the fact that Art. 299 forms part of Part XII which relates to finance, property, contract and suits, I am inclined to think that the operation of Art. 299 is limited to contracts relating to property, etc. and in case of persons who join regular service of the Union or a State it is not necessary at all that they should enter into any kind of contract. The object of a contract is to regulate the mutual rights and duties of the parties and as regards persons who are in regular service of a Union or a State their rights and duties are laid down in the Constitution and the rules of service framed by the Government under the powers given to them by the Constitution.”

12. In the case of Purushottamdas Dhingra v. Union of India, (4) decided by the Supreme Court and reported in A.I.R 1958 S.C 36, Vivian Bose, J., who delivered the dissentient judgment considered the position of the Government servant and made the following observation at page 50 of the report:

“The word ‘contract’ is used in Art. 310(2) but as these ‘contracts’ are as much subject to ‘pleasure’ as any other engagement of service (except as otherwise provided by the Constitution) they are not contracts in the usual sense of the term; nor are the conditions of service that apply to Government servants who do not serve under a special ‘contract.’ A contract that can be determined at will despite an express condition to the contrary (and that is what Art. 310(2) contemplates), is not a contract as usually understood; nor are conditions of service that can be unilaterally varied without the consent of the other ‘contracting party’ and even behind his back. But they are convenient terms to convey a thought and that is the sense in which ‘contract’ is used in Art. 310(2) and the sense in which it has been used in some Privy Council rulings.

Now these ‘conditions of service’ (and of course special ‘contracts’ as well) confer ‘rights’ and though the conditions can be varied unilaterally because of the ‘pleasure,’ they cannot be ignored so long as they are in force; and if a dismissal, or removal, or reduction in rank infringes one of these ‘rights’ then, in my judgment Art. 311 is attracted.”

13. The majority judgment does not consider this aspect of the matter because it was not necessary for their decision. It may be said that the observation of Vivian Bose, J. is an obiter and in any event is nothing more than the view of the dissentient judge. Nevertheless, the observation of a dissenting judge, unless it is negatived by the majority either expressly or impliedly, is entitled to respect. Mr. Mukherjee has referred me to a decision in the case of The Parlement Beige, (5) (1879) 4 Probate Division 429, in which case, even though the decision of the trial court was wholly reversed in appeal it was subsequently held that the point which was not expressly or by necessary implication dissented from by the appeal court was nevertheless good law. Whether or not such an observation by a minority judge of the Supreme Court is a compelling decision on me, there is no question that this decision has very great persuasive authority.

14. As stated before, there is a direct decision of Bose, J. on the point in which the learned judge held that a contract of employment under the Union of India or the States is hit by Art. 299 of the Constitution, so that unless the contract of employment is evidenced by a formal document in the prescribed form, the employee acquires no rights in respect of his employment which can be enforced in a court of law. In Subodh Ranjan's case, (1) reported in A.I.R 1953 Cal. 319, Bose, J. gave the above decision. In support of the above proposition, his lordship relied on his own unreported decision in the case of Dinendra Nath Mullick v. Director of Supplies and Disposals, (6) dated July 3, 1952 (Matter No. 23 of 1952) and the decision of the Bombay High Court in the case of Krishnaji v. Secretary of State, (7) reported in 39 Bom. L.R 807. In Dinendra Mullick's case (6) the point is disposed of with the following observation:

“Mr. A.K Sen and Mr. Arun Mukherjee have contended that as no contract of employment has been at any time entered into between the petitioner and the Governor-General or the President, in accordance with the requirement of section 175 of the Government of India Act, 1935 or Art. 299 of the Constitution, the petitioner has no right to enforce in a court of law and so the petition must fail.

It is contended on the other hand by Mr. Sadhan Gupta that section 175 or Art. 299 has no application to cases of appointments to posts under the Union or the State. It is argued that the provisions have reference to commercial contracts alone. I do not find any warrant for putting such a narrow construction on section 175 of G.I Act, 1935 or Art. 299 of the Constitution. It is well settled that the provisions of a Constitution should not be construed in a narrow or pedantic sense. It appears to me that sec. 175(3) or Art. 299(1) applies to all contracts including contracts of employment and unless the contracts of service are in the prescribed form, the so-called employee acquires no rights in respect of the employment which can be enforced in a court of law. Section 240(4) of the Government of India Act, 1935 and Art. 310(2) of the Constitution refer to ‘contracts’ of appointment and thereby indicate that it was and is necessary for persons holding civil posts under the Crown in India or the Union of India to enter into contracts of employment which must necessarily be valid contracts as required by law. In my view this contention of Mr. Sen though unmeritorious in character is not devoid of substance and therefore it must succeed.”

15. In the Bombay case (7) above referred to Wassoodew, J. who delivered judgment of the Bench disposed of the point at page 813 of the report with the following observation:

“We think the learned District Judge properly dealt with the question as to whether the contract was affected by the provisions of section 30 of the Government of India Act. The provisions of section 30, to which I have already referred, are mandatory and must be strictly complied with in order to constitute a valid contract which could be enforced against the Secretary of State. According to the provisions of the law and the rules in force the contract must be by a deed executed on behalf of the Secretary of State and, in his name by the proper authority (see Secretary of State for India v. Yadavgir, Municipal Corporation of Bombay v. Secretary of State of India and Municipal Corporation of Bombay v. Secretary of State). The provisions of section 30 of the Govern ment of India Act, in the view we take, are a complete answer to the plaintiff's claim, in the absence of a contract in writing executed in proper form.”

16. The Bombay decision assumes that a contract of employment be-, tween the Government and its servant must be by a formal document in the prescribed form and lays down that the provisions are mandatory. It does not give any reason why this kind of contract of employment between the Government and its servant should come under the purview of the section so as to make the contract of employment void, giving no right to the employee, The only reason given by Bose, J. in Dinendra's case is that the provisions of the Constitution should not be narrowly construed and the word ‘contract’ should be given the fullest meaning so as to cover not merely commercial contracts and contracts with respect to property but contract of employment as well. On going through the judgment of Bose, J., I am apt to think that the question was not fully analysed and considered and the learned judge was prevented from looking at the question from the angle the question was considered by Teja Sing, C.J in H.S Bedi's (3) case and by Vivian Bose, J. in Purushottamlal Dhingra's case (4). Bose, J. did not notice the distinction between the Government servant and other employee. He did not notice this important fact that whereas in the ordinary case of master and servant, the relationship is wholly governed by contract, in the case of Government servant the relationship is wholly deter mined by Rules to be varied and altered unilaterally by the Government without the consent of the employee. The fact that in the case of most of Government servants there was no contract of employment in the prescribed form might be presumed to be within the knowledge of the Constitution makers. It must equally be presumed to be within the knowledge of the Constitution makers that to insist on a formal contract of employment as a condition for application of Art. 311(2) would deprive most of the Government servants of the protection guaranteed under the said Article. And, lastly, the fact that Art. 299 forms part of Part XII of the Constitution, which deals with ‘finance property, contract and suit,’ whereas Art. 311 forms part of Fart XIV of the Constitution which deals with the ‘services under the Union or States,’ has an important bearing on the question as to whether the beneficial provisions of Art. 311 were only to be limited to few Government servants having formal contracts in the prescribed form or it is available to all. A pain, if service under Government is purely contractual, no writ of mandamus could issue in respect to Government servant. (See P.K Bannerjee v. L.I Simonds (8) A.I.R 1947 Cal. 307; Dubar Goala v. Union of India (9) A.I.R 1952 Cal. 496), Yet no court ever hesitated in issuing writ of mandamus in the case of Government employees. It is clear that these points were never placed before Bose, J. His lordship was prevented from considering this question in all its aspects. In my judgment the word ‘contract’ in Art. 299 must be given a restricted meaning so as to leave out the case of Government employees whose employment though originating in contract is regulated after appointment by Statutory Rules and not by contract. With respect I differ with Bose, J. on this point.

17. Coming now to the point of limitation, Mr. K.C Mookerjee's contention is that the instant case will be governed by Art. 115 and not Art. 120 of the Limitation Act. Art. 115 applies to a suit for compensation for breach of a contract. The period of limitation is 3 years from the date of breach. It is contended that the right of the plaintiff arises out of a contract of employment and the breach of such contract took place at the date of termination, viz., August 1, 1950. Last date of limitation is August 1, 1953. The suit has been instituted in 1955. Hence the claim of the plaintiff, if any, is time-barred. The Article only applies if the instant suit is for compensation for breach of contract. The present suit is, however, a declaratory suit—declaration sought being that the plaintiff is still a Government servant. All other reliefs in the plaint are consequential. It is impossible to hold that such a suit is for compensation for breach of contract. The cause of action pleaded in the plaint is that the order of termination of service is void and as such the plaintiff is still a Government servant. On this allegation the only relief the plaintiff can claim and has claimed is a declaration that the order being void there is no lawful termination of service and the plaintiff still continues in office. He can never claim, as he has not claimed, in this suit damages for breach of contract. The instant suit is in substance and in fact a declaratory suit and Art. 115 has no application to such a suit. The proper Article applicable to declaratory suits is Art. 120 and the period of limitation is 6 years from the date of accrual of the right to sue which, in the instant case, is August 1, 1956. The suit has, therefore, been instituted well within the period of limitation. Mr. Mukherjee next argued that the case is to be governed by Art. 14 of the Limitation Act because it is in substance a suit to set aside an order of dismissal. The suit is nothing of the kind. The allegation being that the order of termination of service is void, it is not necessary to set aside the order, and a mere declaration is enough. Art. 14 has clearly no application in this case.

18. The main controversy in this case is whether the order of termination of service is void. The order of termination of service appears from two communications made by the Director, West Bengal Fire Service to the plaintiff dated 30th June, 1950 and 3rd August, 1950, which read as follows:

“30th June, 1950.

After reviewing the appointment of the officers and men in the West Bengal Fire Services by the Selection Committee, appointed by Government, I regret to inform you that they have found you unsuitable for a post in officer's rank of the West Bengal Fire Services, as such your services are no longer required and you are given one month's notice from the 1st of July, 1950.

You are, however, given offer, if willing, to serve in the rank of Leader. Decisions to be intimated to me by the 8.7.50

Director,

West Bengal Fire Services.”

3rd August, 1950.

The undersigned has to inform him that he has been discharged from the West Bengal Fire Services with effect from 1.8.50 for not intimating to this office his decision regarding the acceptance of the post of a leader within the 8th July, 1950.

Director,

Fire Services, West Bengal.”

19. A small point was made by Mr. K.C Mookerjee that the communications above referred to are not themselves the orders but communications thereof though they do contain the substance of the orders passed. It is therefore not strictly correct to say that they are the offending orders. The declaration sought is that the order dated August 3, 1950 is void. The offending order, however, is something different and the letter of August 3, 1950 is only the communication thereof. I will, however, ignore these trivial irregularities. The plaintiff was entitled to exact copies of the orders passed against him. The defendant not having given him exact copies but having sent to the plaintiff two memorandum conveying the substance of the orders, will not be heard to raise the technical plea that the exact orders have not been relied on but their substance. The plaintiff was entitled to treat the two memoranda dated June 30, 1950 and August 3, 1950 as the orders against which he was to move in a civil court. The plaintiff, however, should have sought a declaration with respect to the order dated June 30, 1950 because that is the order by which his service was terminated. In the circumstances of this case, the plaintiff may be condoned for thinking that the offending order is the one dated August 3, 1950 and not the one dated June 30, 1950.

20. The above two orders are really complementary. The memorandum of June 30, 1950 contains two things:

(1) Notice of termination of service, one month from July 1, 1950, on the ground that the plaintiff was unsuitable for a post in officers' rank. The plaintiff was originally appointed in the post of ‘Station Officer’ in 1945 and after partition he was holding the post of ‘Sub-Officer.’

(2) An offer of a post in the lower rank of leader—the intimation of acceptance of this offer must be made before July 8, 1950.

21. The second letter of August 3, 1950 really amounts to an intimation that the offer in the lower rank of a leader not having been accepted, the offer was no longer open and the plaintiff was no longer a Government servant in any capacity so that on and from August 1, 1950 he stood discharged from service altogether. His employment in the officers' rank has been terminated by the memorandum of June 30, 1950, on and from August 1, 1950. The memorandum of August 3, 1950 is only this that he would no longer be employed in the lower rank of a leader, the plaintiff not havnig accepted the offer of post in the lower rank within the time indicated in the memorandum dated June 30, 1950. It is to be noticed that neither of the two memoranda use the word ‘dismissal.’ The memorandum of June 30, 1950 uses the phrase ‘your services are no longer required,’ ground stated to be plaintiff ‘having been found unsuitable for the post.’ The memorandum of August 3, 1950 uses the word ‘discharged’ from service. Reading the two memoranda, it must be held that the plaintiff was not ‘dismissed’ from service but only his services were terminated. The word ‘dismissal’ has a technical meaning. The Government intimated that it had nothing against the plaintiff, that he was not guilty of any misconduct, but the Government thought he was not ‘suitable’ for the post. This ‘unsuit-ability’ may perhaps be equated to ‘inefficiency,’ common phrase used in official language. Mr. Arun Mukherjee contended that the action of the Government amounts to reducion in rank because he was holding an officer's post —Station Officer or at least Sub-Officer —whereas he is now being offered a post of lower rank of leader. I do not think, however, that this contention is correct. The plaintiff, though employed from 1945 till 1950 in the officers' rank, did not hold any substantive post of a permanent character. His service was temporary, periodically extended, as indicated before. He had no right to a substantive post. His last appointment was provisional in the post of Sub-Officer, as will appear from the following document (page 46 of the brief of documents).

4.5 50.

22. With the amalgamation of the Calcutta Fire Brigade, Expanded Fire Brigade and West Bengal Fire Service, selection of the officers and other staff of the new set up have been made by the Selection Committee and I am pleased to inform you that you have been provisionally appointed as Sub-Officer in the new set up with effect from 18.4.50 and you will continue to draw your existing pay until further orders.”

23. The position, therefore, seems to be that the plaintiff was all along holding a temporary office and his last posting, which was expected to be in a permanent office, is nothing more than provisional. His office was terminated on the ground that he was found unsuitable, that is, inefficient for the post. It is strange, however, that he was found inefficient after service for five years. Had the point of malafide exercise of power not been abandoned, this fact would have been of importance on the point of malafide.

24. In the instant case, no proceeding as contemplated by Art. 311 of the Constitution was taken. It is true that the plaintiff was called upon to appear and did appear before a ‘Reviewing Committee’ which Committee found the plaintiff to be unsuitable. Mr. K.C Mookerjee however, did not, as he could not, claim that this satisfies the requirement of Art. 311 of the Constitution. If, therefore, it is held that in the instant case the plaintiff was entitled to claim the benefit of Art. 311 of the Constitution, then the order of termination of service must be held to be illegal, on the ground of non-compliance with the provisions of Art. 311 of the Constitution.

25. The law on the subject has been fully discussed and laid down by the Supreme Court in their recent decision in the case of Purshottamial Dhingra v. The Union of India, (4) reported in [(1958) S.C.A 37 : A.I.R 1958 S.C 36]. The judgment was by a majority—the only dissenting judgment was delivered by Vivian Bose, J. The majority judgment was delivered by Das, C.J and the whole question has been discussed fully and thoroughly by his lordship. The facts of the case are short and simple. Dhingra held post in Class III Service under the Railway. Administration of the Union of India. On July 2, 1951, he was appointed to officiate in Class II. Service. There were adverse reports in his service records and by an order of August 19, 1953 he was reverted to Class III appointment. On Dhingra making representation against the order, the Railway Board wrote to the General Manager and in the concluding paragraph the Board directed the General Manager as follows:

“You may watch his work up to the end of March 1955 and judging from his work and conduct, you may treat him as eligible for being considered for promotion as Assistant Transportation Superintendent in the selection that may be made after March, 1955.”

26. Against the order dated August 19, 1953 reverting him from Class II post to Class III, Dhingra moved the High Court under Art. 226 of the Constitution. Harnam Sing, J. in the trial court held that the petitioner had been punished by being reduced in rank without being given an opportunity to show cause against the order proposed to be taken in regard to him and consequently the order was invalid for non-compliance with the provisions of Art. 311 of the Constitution on Letters Patent Appeal, the Appeal Court reversed the order of the trial judge and dismissed the application. The matter then came up before the Supreme Court and the question in volved was whether the offending order amounted to a reduction in rank within the meaning of Art. 311(2) of the Constitution.

27. As is usual with Das, C.J, the judgment considers the whole law on the subject and the question has been looked at from every point of view. Entire case law was considered and analysed and the principle formulated in clear-cut terms. After analysing Arts. 310 and 311(2) which relate to services in the Constitution, his lordship records the following conclusion:

“The principle embodied in Art. 310(1) that the Government servants hold office during the pleasure of the President or the Governor, at the case may be, is qualified by the provisions of Art. 311 which give protection to the Government servant. The net result is that it is only in those cases where the Government intends to inflict those three forms of punishments that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It follows, therefore, that if the termination of service is sought to be brought about otherwise than by way of punishment, then the Government service whose service is so terminated cannot claim the protection of Art. 311(2) and the decisions cited before us and referred to above, in so far as they lay down that principle, must be held to be rightly decided.”

28. Then in paragraph 26 his lordship discusses under what circumstances the termination of employment per se would amount to a ‘punishment’ and in so doing divides the service-holders into two categories—those having a right to hold office and those who have not.

“Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is apopinted to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, has the right to hold the post. If he has a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Art. 311. In other words and broadly speaking, Art. 311(2), will apply to those cases where the Government servant, had he then been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the Government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is, prima facie and per se, not a punishment and does not attract the provisions of Art. 311.”

29. Then follows paragraph 27, which is the most important paragraph and is set out in extensor—

“It does not, however, follow that, except in the three cases mentioned above, in all other cases, termination of service of a Government servant who has no right to his post, e.g, where he was appointed to a post, temporary or permanent, either on probation or on an officiating basis and has not acquired a quasi-permanent status, the termination cannot, in any circumstance, be a dismissal or removal from service by way of punishment. Cases may arise where the Government may find a servant unsuitable for the post on account of misconduct, negligence, inefficiency or other disqualification If such a servant was appointed to a post, permanent or temporary, either on probation or on an officiating basis, then the very transitory charactor of the employment implies that the employment was terminable at any time on reasonable notice given by the Government. Again if the servant was appointed to a post, permanent or temporary, on the express condition or term that the employment would be terminable on, say a month's notice, as in the case of Satish Chandra v. Union of India, 1953 S.C.R 655 : (A.I.R 1953 S.C 250), then the Government might at any time serve the requisite notice. In both cases the Government may proceed to take action against the servant in exercise of its powers under the terms of the contract of employment, express or implied, or under the rules regulating the conditions of service, if any be applicable, and ordinarily in such a situation the Government will take this course. But the Government may take the view that a simple termination of service is not enough and that the conduct of the servant has been such that he deserves a punishment entailing penal consequences. In such a case the Government may chose to proceed against the servant on the basis of his misconduct, negligence, inefficiency or the like and inflict on him the punishment of dismissal, removal or reduction carrying with it the penal consequences. In such a case the servant will be entitled to the protection of Art. 311(2).”

30. On the facts, Das, C.J held that the appointment in Class II being on officiating basis, Dhingra had no right to the post and the order reverting him to his permanent office in Class III service does not amount to reduction in rank within the meaning of Art. 311(2) nor can this so-called reduction in rank be considered by way of punishment. The decision of the Appeal Court setting aside the order of Harnam Sing, J. was upheld on these grounds. In the dissenting judgment Vivian Bose, J. agreed that Art. 311 would only apply when penal consequences ensue from dismissal or removal or reduction in rank, though he would prefer to phrase this in wider terms and say “that the Article is attracted whenever a ‘right’ is infringed in the way I proceed to explain, for ‘right’ can be infringed in that sort of way even when no penal consequences follow. He then explained the word ‘right’ need not be justiciable but which would form a ‘good foundation for a petition of rights’ in England. In his view, there were evil consequences of the order complained of, inasmuch as in future Dhingra would not be promoted to Class II service “until some competent officer chooses to think that he has made good his previous shortcomings.” He considered this to be a case of stopping of promotion to a higher rank for an indefinite period and as such must be held to be a ‘punishment’ or ‘penalty’. In His Lordship's view, we have to look to the consequence to determine whether the order operates as a punishment or penalty and the form of the order, procedure followed and the intention of the officer who passed the order are irrelevant considerations. It is the effect of the order that matters and in His Lordship's judgment Art. 311 applies whenever any substantial evil follows over and above a purely contractual one. The protection against Art. 311 is not against harsh words but against hard blows.

31. The law as I understand as laid down by the Supreme Court in the above case is that in cases where the employee has a right to a post, any order terminating his service or transferring him to a post of lower rank would per se be treated as punishment or penalty. An employee has a right to a post, if he is a permanent incumbent of that post or in the case of temporary incumbency, the post is for a stated period. An employee holding a provisional or officiating appointment has no right to that post. So that termination of such provisional appointment or reverting him to his substantive office in lower rank from an office of higher rank in which he was officiating, does not per se amount to punishment or penalty. In the case of provisional or officiating appointments, something more than mere termination of service is necessary to bring the case within Art. 311 of the Constitution. This judgment of the Supreme Court was very carefully considered by Sinha, J. in the case of Dhajadhari Datta v. Union of India under Art. 226 of the Constitution. In his judgment delivered on April 3, 1958 (unreported—since reported in 62 C.W.N 546—Ed.) his lordship laid down the following proposition:

“Where a person is appointed to officiate in a permanent post or to hold a temporary post other than one for a fixed term whether substantively or on probation or on an officiating basis, the implied term of his employment is that his service may be terminated on reasonable notice and the termination of service will not amount to dismissal or removal from service.”

32. In the instant case the plaintiff did neither hold any permanent post nor a temporary post for a fixed period. His letter of appointment given in April/May, 1950 shows that his appointment as Sub-Officer was temporary. It follows that at the date of termination of his appointment he had no right to a post. Termination of service, therefore, cannot be treated ‘per se’ as a penalty or punishment.

33. Mr. Arun Mukherjee, however, argues that the orders evidenced by the memoranda of June 30, 1950 and August 3, 1950 do not amount to mere termination of service. It contains something more. The concluding sentence in the memoranda of 30th June contains an offer of service in the lower rank and there is this sting in the tail. The second memorandum dated 3rd August purports to terminate his service for not intimating his decision regarding acceptance of the post of a lower rank within July 8, 1950, This termination of service, therefore, must be held to be for disobedience, the act of disobedience being not intimating his decision regarding the acceptance of the post of leader. If the case of termination of service or one of the causes be the disobedience of an order of a superior officer, then such termination has been held by Sinha, J. in the case above referred to, to be by way of punishment.

34. I am, however, unable to read the two memoranda in the manner Mr. Arun Mukherjee asked me to do. The first Memo of 30th June is the definite termination of the plaintiff's appointment as Sub-Officer. This letter also contains an offer of a post in the lower rank to be accepted within a specified time. That offer not having been accepted within the stipulated time, the second memorandum dated August 3, 1950 is nothing more than an intimation that the offer is no longer open and on and from 1st August his Connection with West Bengal Fire Service ceased.

35. Mr. Arun Mukherjee further argued that the instant case is one of giving the dog a bad name and then hang him. The ground of termination of service has been stated to be ‘unsuitable’ for the post which means inefficiency and incompetence. It is true that to tell a man that he is incompetent after five years of service raises a considerable suspicion that the order was not bonafide. Had the point of malafide exercise of pov/er not been abandoned at the hearing, I would have given this fact its appropriate consideration. But the office of the plaintiff being provisional, the termination of service on the ground of un-suitability cannot be considered to be a punishment. In Dhingra's case the reversion to a lower rank on the ground of unfitness to hold a higher post was not considered to be by way of punishment. Not even the dissentient judge considered this to be a punishment. Vivian Bose, J., considered the order to be by way of punishment because of the fact that the petitioner would not be promoted to the higher rank indefinitely. This was the evil consequence of the order in the Supreme Court case. On the law and authority 1 am bound to hold that in the instant case termination of service does not amount to a punishment and as such Art. 311 of the Constitution is not attracted. In the result, the suit must be dismissed.

S.N.S