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Case Number

Civil Revn. No. 3054 of 1959

Attorney(S)

Biswanath Bajpayee
P.K. Banerjee
for Opposite Parties Nos. 1 and 2. P.K. Sen Gupta with Amar Prosad Chakravarti
for Opposite Party No. 3

Judges

P.B Mukharji, J.

Acts

REPRESENTATION OF THE PEOPLE ACT 1951

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Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The petitioner was employed as a Mistry Instructor (Carpentry) at the Murshidabad Institute of Technology, Berhampore, West Bengal. He was appointed by a letter dated 3 September 1957 which expressly stated that the appointment was on a "purely temporary basis" at a specified monthly pay. The petitioner alleges that his services were wrongly terminated by an order dated 31 July 1959, which gave one month's notice taking effect from 1 August 1959. The petitioner obtained a Rule on 17 September 1959 under Article 226 of the Constitution challenging the termination.

The record shows the petitioner remained temporary and was never made permanent; there were complaints about the unsatisfactory nature of his work. Service rules cited on the record came into force on 1 November 1959, after the termination date. The case was heard and determined by the court in the opinion provided.

Legal Issues Presented

Whether, given the petitioner's appointment on a "purely temporary basis" with no special contract or specified fixed term, he acquired any substantive right to continued employment such that the termination could be challenged (i.e., validity of termination of a temporary appointment).
Whether service at the Murshidabad Institute of Technology (a "sponsored and aided" engineering institution for diploma courses) constitutes a "civil service of a State" or a "civil post under a State" within the meaning of Article 311(1) of the Constitution.
Whether a writ under Article 226 lies against the Murshidabad Institute of Technology, its Governing Body, its Secretary or its Principal, given that they are unincorporated bodies or private individuals.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Parshotam Lal Dhingra v. Union Of India, AIR 1958 SC 36	Principle that appointments to temporary posts (or permanent posts on probation/officiating basis) are, in the absence of a special contract or a definite fixed term, terminable at any time; the appointee acquires no substantive right to the post except where appointment is for a definite period.	The court relied on the observations in para (11) (p. 42) of this decision to conclude that the petitioner's purely temporary appointment (with no special contract or specified term) did not vest any substantive right and therefore the termination was not invalid on that ground.
K.C. Deo Bhanj v. Raghunath Misra, AIR 1959 SC 589 (pp. 594–595)	Discussed various observations and the search for tests to determine what constitutes a "civil post under the State".	Cited as an example of the continuing judicial exploration of tests to define "civil post"; used to support the view that determining whether a post is a civil post under the State must be decided on facts of each case rather than by rigid formulae.
Lachmi v. Military Secretary, AIR 1956 Pat 398	Example of a decision holding a particular post not to be a civil post under the State for Article 311 purposes.	Listed among authorities showing that certain posts (e.g., under statutory corporations or other bodies) have been held not to be civil posts; used illustratively in the court's discussion about the scope of "civil post".
Md. Ahmad v. Improvement Trust, AIR 1958 All 353 (Full Bench)	Authority holding a post not to be a civil post under the State.	Included in the catalogue of cases that the court referenced to show diverse outcomes in deciding whether posts fall under Article 311; used to demonstrate variety in judicial approaches.
Damodar Valley Corporation v. Provat Roy, 60 Cal WN 1023	Decision treating posts under a statutory corporation as not necessarily civil posts under the State.	Cited as an example supporting the proposition that posts under certain organizations have been held outside the ambit of Article 311.
Nagendra Kumar v. Commissioners for the Port of Calcutta, AIR 1955 Cal 56	Authority relevant to whether posts under particular bodies are "civil posts under the State".	Mentioned among cases illustrating that some posts are held not to be civil posts for Article 311 purposes.
Chaturbhuj v. Bihar State Co-operative Bank Ltd., AIR 1955 Pat 223	Decision addressing whether posts under co-operative/state banks are civil posts under the State.	Referred to as part of the line of authorities finding such posts outside Article 311's protection; used illustratively in the court's analysis.
Baleshwar Prasad v. Agent, State Bank of India, AIR 1958 Pat 418	Authority dealing with whether employment under State Bank of India should be treated as a civil post under the State.	Included among examples of courts holding posts under quasi-governmental banking institutions not to be civil posts within Article 311.
Sm. Ena Ghosh v. State of West Bengal, AIR 1962 Cal 420	Decision relevant to the classification of posts as civil posts under the State.	Mentioned in the list of cases that bear upon the general question whether various institutional posts fall within Article 311.

Court's Reasoning and Analysis

The court structured its analysis around three main obstacles which it treated as determinative.

Temporary appointment and entitlement to relief:
The court first examined the terms of the petitioner's letter of appointment dated 3 September 1957, which expressly described the employment as on a "purely temporary basis." The court observed that the petitioner remained temporary on the record and was never made permanent. Relying on the authoritative observations in Parshotam Lal Dhingra v. Union of India, the court applied the principle that, in the absence of any special contract or a definite term, a temporary appointment does not create a substantive right and is terminable at any time (except where the appointment is for a definite period). The court found no special contract and no definite time stipulated in the appointment letter; consequently, under that principle the petitioner did not acquire a protected tenure entitling him to relief.

The court further noted that the service rules shown on record came into operation after the date of termination (1 November 1959, whereas termination occurred on 31 July 1959), and so they could not aid the petitioner. The notice given to the petitioner was characterized as a termination with one month's notice rather than a punitive dismissal; although the petitioner was not given an opportunity to show cause and there were complaints about inefficiency, those facts did not transform the nature of the employment from temporary nor convert the termination into a disciplinary punishment for which different protections might apply.
Whether the post is a "civil post under the State" (Article 311(1)):
The court proceeded to consider whether service at the Murshidabad Institute of Technology amounted to a civil service of the State or a civil post under the State within Article 311(1). The court observed that, although the Government exercised considerable control (financial approval, appointment approval, nomination to the Governing Body), on the facts before it the court was not satisfied that the Institute's service was a civil service of the State or a civil post under the State within Article 311(1).

The opinion discussed the difficulty courts have had in formulating a single test. The court referred to K.C. Deo Bhanj and a number of other decisions which have in some cases held that posts under statutory corporations, improvement trusts, state banks and similar bodies are not civil posts for Article 311 purposes. The court rejected the attempt to adopt any rigid doctrinal test and advocated a fact-sensitive, flexible approach: whether a post is a civil post under the State should be decided on the particular facts of each case, with the nature and degree of State control being an important (but not necessarily decisive) factor.
Writ remedy against unincorporated/private bodies:
The court noted as a further obstacle that, if the Institute was not a Government institution, writ jurisdiction under Article 226 would not necessarily lie against unincorporated bodies or private individuals such as the Governing Body, its Secretary or the Principal. However, the court stated that it was not necessary to decide this point of technicality because the petition failed on the first major ground (the temporary nature of appointment).

On the basis of these analyses, and principally the first ground (temporary appointment governed by Parshotam Lal Dhingra), the court found that the petition could not be sustained.

Holding and Implications

Holding: PETITION DISMISSED. The Rule was discharged and the petition was dismissed. There was to be no order as to costs.

Implications:

Direct effect: The petitioner’s challenge to the termination of his services was rejected; the termination dated 31 July 1959 stands. The petition is dismissed and the Rule obtained by the petitioner is discharged.
Reasoning basis: The dismissal was principally grounded on the legal principle that a temporary appointment, absent a special contract or a definite stipulated term, does not confer a substantive right not to be terminated — a principle drawn from Parshotam Lal Dhingra v. Union of India.
Broader precedent: The opinion did not purport to lay down a new or exhaustive test for what constitutes a "civil post under the State" for Article 311(1); instead it emphasized a case-by-case factual inquiry and referenced existing authorities. The court explicitly avoided adopting a rigid formula, and did not state that it was creating new law on that question. Accordingly, no novel precedent was announced on the classification of the Institute as a civil post under the State.

End of summary based exclusively on the opinion provided.

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Barada Kanta Adhikary v. The State Of West Bengal And Others Opposite Parties.

1. This is an application under Article 226 of the Constitution. The petitioner was a Mistry Instructor (Carpentry) of the Murshidabad Institute of Technology, Berhampore, West Bengal. His complaint is that his services were wrongly terminated. He challenges the order of termination dated the 31st July, 1959. That order of the 31st July, 1959 stated:

“I am directed to inform you that it has been decided to terminate your service in the post to which you were appointed on a temporary basis. I do hereby give you one month's notice for the termination of your service. This notice will take effect from the 1st August, 1959.” The petitioner obtained this Rule on the 17th September, 1959.

2. Three main obstacles stand in the way of any relief being granted to the petitioner in this case. The first obstacle is that the petitioner's letter of appointment shows that he was appointed on “purely temporary basis”. The letter dated the 3rd September, 1957 communicated to the petitioner is the letter of appointment and is in the following terms:

“You are hereby offered the post of Mistry Instructor (Carpentry) of Murshidabad Institute of Technology on pay of Rs. 110/- per month plus usual allowance on purely temporary basis.”

3. On the records he continued to be temporary and the was not made permanent in fact there are certain complaints about the unsatisfactory nature of his work. Be that as it may this much is certain that he was never made permanent and he always remained temporary until the notice of termination of his services as stated before. That being the case it is difficult for him to get any relief having regard to the principles laid down by the Supreme Court in Parshotam Lal Dhingra v. Union Of India, reported in AIR 1958 SC 36 and specially the observations made there at p. 42 in paragraph (11). The relevant observations on this point are at page 42:

“It is, therefore, quite clear that appointment to a permanent post in a Government service, either on probation or on an officiating basis, is, from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time in short, in the case of an appointment to a permansnt post in a Government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. Likewise an appointment to a temporary post in a Government service may be substantive or on probation or on an officiating basis. Here also, in the absence of any special stipulation or any specific service rule, the servant so appointed acquires no right to the post and his service can be terminated at any time except in one case, namely, when the appointment to a temporary post is for a definite period in such a case the servant so appointed acquires a right to his tenure for that period which cannot be put an end to unless there is a special contract entitling the employer to do so on giving the requisite notice or. The person so appointed is, on enquiry held on due notice to the servant and after giving him a reasonable opportunity to defend himself, found guilty of misconduct, negligence, inefficiency or any other disqualification and is by way of punishment dismissed or removed from service or reduced in rank.”

4. It is unnecessary to discuss any further arguments on this point because they are all elaborately dealt with in this leading judgment of the Supreme Court on this point. There was no special contract in this case and there was no special time stipulated in this case before me. I have quoted the letter of appointment. It specified no time. It clearly said that the service was on “purely temporary basis.” That puts an end to this matter. Certain service rules have been shown but they came info operation from the 1st November, 1959 after the petitioner's services terminated on the 31st July, 1959. The notice of terminatioa shows that it was a case of termination and not a punishment. It is true that there was complaint about. The inefficiency his work, but the notice of termination did not put in on that ground. It is also true that when the petitioner wanted an opportunity to show cause no was given that opportunity. But those facts do not make either his services anything else than temporary or make the notice of termination a punishment. He was given one month's notice.

5. The next obstacle on the way of the petitioner is whether Service at such an Institution as Murshidabad Institute of Technology which is called a kind of sponsored and aided Engineering Institution for Diploma courses, is at all a “Civil Service” or “Civil post under a State”. No doubt the Government has a good deal of control both in the matter of finances as well as in the matter of approval of appointments, as well as for nominating members of the Governing Body. Nevertheless, on the facts so far disclosed I am not prepared to hold nor am I satisfied that service of this Institution is “a civil service of a State” or “a civil post under a State” within the meaning of Article 311(1) of the Constitution.

6. There have been many debates as to what is 8 “civil post” under a State. Some observations not oft, this ground but on the general aspect of this question will be found in the decision of the Supreme Court on the Representation of the People Act, 1951 in K.C Deo Bhanj v. Raghunath Misra, reported in AIR 1959 SC 589 at pp. 594 and 595. The Courts' search for tests to define what is a civil post under the State has been so far exploratory without being decisive. It has been said that the real test for determining whether a person holds a civil post under the State is not whether he receives payment out of the State funds but whether the post is subject to and is held under the control of the State and whether the actual functions performed by him are those of the State. It will be unnecessary to discuss the authorities and it will be enough to mention the names of some of these decisions which have held for instance that it is not a civil post under the State within the meaning of Article 311, a post under a statutory Corporation such as Damodar Valley Corporation, the Commissioner for the Port of Calcutta, State Co-operative Bank or the State Bank of India or an Improvement Trust: as in Lachmi v. Military Secretary, AIR 1956 Pat 398, Md. Ahmad v. Improvement Trust, AIR 1958 All 353 (FB), Damodar Valley Corporation v. Provat Roy, 60 Cal WN 1023, Nagendra Kumar v. Commrs. for the Port of Calcutta, (S) AIR 1955 Cal 56, Chaturbhuj v. Bihar State Co-operative Bank Ltd., AIR 1955 Pat 223, Baleshwar Prasad… v. Agent, State Bank Of India, Gaya…Opposite Party., AIR 1958 Pat 418, Sm. Ena Ghosh v. State of West Bengal, AIR 1962 Cal 420.

7. To seek the test of governmental functions, cannot in the present context of expanding governmental activities, be a practical, useful and dependable test. A Professor in a Government College who only teaches and takes classes may not have an obvious governmental or administrative function, but teaching or education has to-day in many instances become a State or Governmental function. Instead of trying to formulate tests of one kind or another to define what a civil post under the State is, I am of the view that it is desirable that the Court should be left free to decide on the facts of each case whether a particular post is a civil post under the State or not. For a civil post under the State within the meaning of Article 311 of the Constitution it is no doubt always relevant and almost sometimes crucial to see the nature of the control which the State exercises in the particular case under consideration. But even where it exists such “control” may not be decisive of the question. It will be dangerous, in my view, to adopt any doctrinaire attitude in this respect. It is all the more so in the present context where various institutions receive many kinds of gifts, aids, help and encouragement from the State in divers ways, then in the realm of education to-day the picture is far from coherent and many indeterminate expressions are used in this connection such as “Aided Colleges” or “Sponsored Institutions” in each case it is a question of fact new far the aid goes and what exactly is “sponsoring” by the Government. Attempt to evolve a rigid uniform formula to bring in different establishments of controlled institutions of this kind within the ambit of “civil service” or civil post under the State” is, in my view, bound to fail. A certain amount of flexible interpretation guided by the facts of each case is a necessity in the present context of the Governmental administration. The orthodox limits and ideas of a civil service or a civil post under the State may not to-day exhaust all such categories under Article 311(1) of the Constitution. At the same time the other extern also will be equally inappropriate if it includes all kinds of miscellaneous and hybrid institutions, mostly private or quasi-private with aids or controls or “sponsoring” financial or otherwise from the Government within “civil service” or “a civil post under the State”. Between these two extremes I think the Courts in the present state of law should have to find in each case on its own merits whether a particular service in a particular case is a civil service or civil post under the State within the meaning of Article 311(1) of the Constitution. No doubt within these two extremes on either'side there are many other Intermediate stages where one test or another or combination of many tests will determine the decision in a particular case either in favour of the post being under the State, or against the post being a civil post under the State within the meaning of Article 311(1) of the Constitution.

8. The third obstacle on the way of the petitioner is that if it is not a Government Institution, then no writ lies against such bodies as the Murshidabad Institute’ of Technology, its Governing Body or its Secretary or the principal for the simple reason that they are unincorporated bodies and private individuals. It is not necessary having regard to the view that I have expressed above to determine this point of technicality because the application fails on the first major grounds. The Rule must, therefore, be discharged and the petition is dismissed. There will be no order as to costs.

JF/N/V.B.B

9. Petition dismissed.

Barada Kanta Adhikary v. The State Of West Bengal And Others Opposite Parties.

Concise Analytical Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Barada Kanta Adhikary v. The State Of West Bengal And Others Opposite Parties.

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