Bapna, J. - (1.) THIS is a petition under Article 226 of the Constitution of India.
(2.) THE petitioner Mr. Nihal Chand Bhasin, presented the petition on the 25th of May, 1950, for a writ being issued by this Court to the State of Rajasthan and the Chief Secretary of the Government of Rajasthan directing them to refrain from enforcing an order of the Government of Rajasthan dated the 12th of May, 1950, by which the services of the petitioner were directed to be terminated with effect from the date he was relieved of his duties. THE petitioner was at the time working as Assistant Commissioner, Civil Supplies Department of Rajasthan and posted at Bikaner. According to the facts mentioned in the petition, [mr. Bhasin was a legal practitioner in Lahore, and after the partition in August 1947, migrated to India and settled in Bikaner. He held a certain post in the former Government of Bikaner from October 1947 to 15th March 1948. After formation of Rajasthan he was appointed as Enforcement Officer Supplies Department, Bikaner, in August 1949 and continued to act as such till 21st February 1950, when he was appointed as Assistant Commissioner, Civil Supplies Department, Bikaner division, as per notification in the Rajasthan Raj-Patra of 4th March 1950. It was alleged that the petitioner had been discharging his duties faithfully, efficiently and honestly. Nevertheless, his services were terminated by the Rajasthan Government by the order of 12th May 1950, According to the petitioner, he apprehended that his removal from service had been ordered because he was a displaced person and this was contrary to the circulars issued from time to time directing that priority should be given in the matter of resettlement of displaced persons in Rajasthan. The petitioner maintained that the Government had ordered his removal from service without giving any reasonable opportunity of showing a cause against the action taken against him, and this was contrary to the provision of Article 311 of the Constitution. The removal on the apprehended ground of being a displaced person was stated to be contrary to Article 16 of the Constitution. On notice being issued, it was submitted on behalf of the Government of Rajasthan that the employment of Mr. Nihal Chand Bhasin by the former Bikaner State was terminated on the 15th March 1948, when the post was brought under reduction. The appointment as Enforcement Officer, Supplies Department, Bikaner, was made on)2th August, 1949 by the Director of Civil Supplies, Bikaner, in anticipation of the sanction of the Govern ment of Rajasthan and the Government by its order dated 10th February, 1950, sanctioned the appointment of Mr. Bhasin for a period of six months only, from the date of appointment. In the meantime, in the integrated set-up' Mr. Bhasin was appointed temporarily as Assistant Commissioner Civil Supplies, Supplies Department, and posted at Bikaner by order dated 21st February, 1950, and that, as the appointment was only temporary for six months, the Government was entitled to terminate his appointment in the manner it was done. It was contended that Article 311 was inapplicable in the case of the petitioner and circulars regarding resettlement of refugees were irrelvant. The termination of his services was stated to have been done because his initial appointment with effect from 12th August 1949, was only for a period of six months. At an early stage, the petitioner was directed to produce the order of his appointment in August 1949, which could throw light on the terms and conditions of his employment, but the petitioner, as late as 23rd June, 1950, declared that he did not receive the order of appointment at any time, although he was allowed to work and receive the salary. Certain documents produced by the Government, however, clearly show that it was Mr. Goswami, Director of Civil Supplies, Bikaner, who, on his authority, appointed Mr. Nihal Chand as Enforcement Officer in anticipation of the sanction of the Government of Rajasthan with effect from 12th August 1949 (vide letter of Mr. Goswami to Supplies Commissioner, Rajasthan, dated 21st August, 1949 ). The Commissioner Civil Supplies, Rajasthan, wrote to the Government on 10th December 1949, that the action of the Deputy Commissioner, Civil Supplies Bikaner, (Mr. Goswami), was irregular as he was not competent to sanction the appointment of Mr. Nihal Chand without previous approval of the Government, but that as he has already made the appointment and was himself no more in the service the action may be regularized. The Government confirmed the action of the Director of Civil Supplies (Mr. Goswami) with a rider that appointment was for a period of six months only from 12th August, 1949. This was conveyed by a letter of the Chief Secretary to the Secretary to the Government, in Civil Supplies, No. F. 1/44 dated 10th February, 1950 a copy of which appears to have been sent to Mr. Nihal Chand also. The allegation of the petitioner that he continued to remain in service from August, 1949, till his appointment on 21st February as Assistant Commissioner, Civil Supplies. Bikaner Division, is only partially correct. The petitioner did not mention who appointed him in August 949 and on what terms, but this has now been disclosed by the reply of the opposite party which is supported by the original orders and it is quite clear that his appointment was for a period of six months only and according to the terms of his appointment, his service should have received a break on the nth February 1950. The termination of his appointment on the nth February, however did take place, perhaps due to the d lay in transmission of orders or oversight of the Head of the Department or both and he continued to discharge the duties of Enforcement Officer until on 21st February 1950 he was appointed as Assistant Commissioner in Civil Supplies as aforesaid. The continuation in service after the nth February, however, must be attributed to a fresh implied contract of service and his earlier appointment must be deemed to have come to an end on nth February 1950. The order of 1st February, 1950, would be deemed to be a fresh order of appointment and will be construed hereafter accordingly. The version of the non-petitioner that the services of Mr. Nihal Chand were ordered to be terminated with effect from the date on which he was relieved of his duties under order of the 12th May, on account of his initial appointment from 12th August, 1949 having been sanctioned for only a period of six months appears to be based on some confusion of thought, since the six months from 12th August, 1949, ended on nth February and if it was intended then to terminate his service, his appointment in the integration scheme as Assistant Commissioner on 21st February remained unexplained. It appears that either the Government wanted to let Mr. Nihal Chand continue in service temporarily after the expiry of the term of his appointment on 11th February 1950, and on that ground the order of appointment as Assistant Commissioner, Civil Supplies, Bikaner was issued on the 21st February, 1950, or his appointment was made in a thoughtless manner without keeping in view the earlier order of 10th February, that his services had been directed to be terminated on the nth February. Be that as it may the appointment order of 21st February is the one which was in force from that date and the termination ordered by the Government on 12th May was of that appointment. It may be stated at once that no ground has been made out by the petitioner to think that the provisions of Article 16 of the Constitution have been violated. It was contended for the petitioner that the allegation made by the petitioner in his affidavit that his services had been terminated because he was a displaced person having not been definitely denied by the non-petitioner should be taken to be correct. The contention is without any force. The affidavit of the petitioner on the point reads as under: - "so far as I know, my services are being terminated on the ground that I am a displaced person" Such an affidavit in which the ground of belief or the source of knowledge is not mentioned is of no value. It is at best an apprehension which is not the same thing as an affidavit of fact in the personal knowledge of the petitioner. The circular of the Minister of Relief and Rehabilitation dated 4th November 1949 a copy of which has been produced by the petitioner, only emphasises the importance of settlement of displaced persons in Rajasthan and is only of recommendatory nature and does not purport to confer any right on any displaced person to be appointed to or to continue in any Government post irrespective of other factors. The allegation that his services were terminated because he was a displaced person is entirely without foundation. It was argued by the learned Government Advocate that under Arti-cle 310 of the Constitution, every person holding a civil post, in Rajasthan leaving aside certain exceptions, mentioned in the (Constitution, does so at the pleasure of the Rajpramukh, and as the petitioner's case did not come under the exceptions he had no right to challenge the order of termination of service. On behalf of petitioner it was urged that Article 310 which lays down that every person who is a member of civil service of a State holds office during the pleasure of the Rajpramukh of the State is subject to the provision of Article 311, clause (2), which provides that no such person as aforesaid, shall be dismissed or removed until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Reliance was placed on A. 1. R. 1948 P. C. 121 {high Commissioner for India Vs. I. M. Lall) in which Sec. 240 of the Government of India Act, 1935, was interpreted by their Lordships of the Privy Council, and the argument of the learned counsel for the petitioner is that Article 310 (1) and Article 311 (1) and (2) reproduce the same provision. It was strenuously contended that the services of even a temporary officer could not be terminated without giving the person sought to be removed from service a reasonable opportunity of showing cause against his removal as provided by clause 2 of Article 311. In my opinion, there is a material difference between the language and also in the arrangement of the provisions in the Government of India Act and the Constitution and although they cover nearly the same ground, they bear a different interpretation. The relevant portion of section 240 of Government of India Act is as under:- " (1 ). Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India holds office during His Majesty's pleasure. (2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. (3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity for showing cause against the action proposed to be taken in regard to him. " Their Lordships of the Privy Council held that the clause "no such person as aforesaid" in sub section (3) referred to the person mention-ed in sub section (1) and therefore, included civil servants holding office during his Majesty's pleasure. It was therefore, held that the provisions of sub section (3) were applicable even to a person who held office during His Majesty's pleasure. In the Constitution, the provisions corresponding to section 240 of the Government of India Act are split up in two Articles, 310 and 311, as under: - "310 (1) 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 Raj-pramukh of the State. " Sub clause 2 refers to a provision for compensation for persons of special qualifications appointed under a contract and being inapplicable need not be considered here. 311 (1) No person who is a member of civil service of the Union or an all-India Service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. " (2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. " The remaining portion of the Article is not relevant. It would be seen that in the Constitution the provision as to an employee holding office during the pleasure of the President, the Governor or the Rajpramukh, as the case may be, appears as a separate section. Clause (1) Article 311 of the Constitution, although covering the same ground as sub-section (2) of section 240 of the Government of India Act, stands by itself and is a separate self-contained provision and does not purport to qualify clause (1) of Article 310 Clause (2) of Article 311 though identical in language with sub section (3) of section 240 would only qualify clause (1) of Article 311 and not clause (1) of Article 310 with the result that the expression "no such person as aforesaid" in clause (2) of Article 311 can only refer to a person described in clause (1) of Article 311. Therefore, in my opinion, a person removed from service at the pleasure of the Rajpramukh in Rajasthan is not entitled to the safeguard given by the clause (2) of Article 311 The discussion, however, becomes academic as it is not shown that the order of 12th May, 1950, emanated from the Rajpramukh. The original order which has been produced by the petitioner purports to have been issued by the Appointments Department of the Government of Rajasthan and is to the following effect. "the services of Shri N. C. Bhasin,formerly Enforcement Officer Bikaner, are terminated with effect from the date he is relieved from his duties. By Order (Sd.) V. R. Adige, Additional Secretary to the Government of Rajasthan" There is nothing to show in the order that it emanated from the Rajpramukh. It may be observed that it has not been disclosed on behalf of the Government as to who appointed Mr. Bhasin on 21st February, 1950, or who ordered his retirement on 12th May 1950. All that can be said is that under the presumption arising under section 144 of the evidence Act, it can be presumed that the official acts emanated from proper authority. The petitioner has not challenged at any stage that the authority which had directed termination of services was not empowered to do so, and this aspect need not be examined further. The termination of service, not having been shown to have been made under the provisions of Article 310 of the Constitution can only be presumed to have been made by the authority referred to in Article 311 clause (1 ). The next question which aris-es is whether clause (2) of Article 311 was applicable in this case. It was contended for the petitioner that ''dis-missal or removal from services" were synonymous and the order of the Government dated 12th May purported to remove the petitioner from service and as such the procedure required by Article 311 (2) should have been followed. Reliance is placed on A. I. R. 1950 Lahore 59 (Yusuf Ali Khan Vs. Province of Punjab) in which Corlenius J. has made certain observations which purported to show that even a temporary employee on the civil side of the administration, as distinguished from the military side would be holder of a civil post under the Crown referred to in section 240 of the Government of India Act and sub section (3) of section 240 would be applicable to his case. In the case under reference, Yusuf Ali Khan was a temporary Government employee of the Government of Punjab in the Civil Supplies Department as sub-Inspector. Certain allegations had bean made against him which led to a departmental inquiry followed by an order of dismissal. Corlenius J. held, following A. I. R. 1948 P. C. 121 that the provisions of sub-section (3) of section 240 were applicable in his case and as no reasonable opportunity for showing cause against his dismissal had been given to him his dismissal was void and inoperative. It may be pointed out that the proviso to sub section (2) of section 241 of the Government of India Act, which related to temporary employees was not relied upon in the Lahore case and the argument only proceeded with respect to the applicability of section 240 of the Government of India Act. The Constitution does not seem to make any clear distinction in respect of temporary or permanent servants while dealing with dismissal, removal or reduction in rank of the employees on the civil side of the administration. Nevertheless, I am of the opinion that a distinction must be made by the very nature of things between temporary and permanent employees. The word "temporary" indicates that the appointment is for a time only and the period is to be determined by the employer. In cases therefore, a temporary employee is to be relieved of his post, because either the post is to be reduced or there is another permanent employee waiting to take up the appointment or for any other reason not connected with the employee himself, any order directing the temporary employee to relinquish the post is within the terms of the employment itself. It was conceded by the learned counsel for the petitioner that temporary employees appointed for particular periods would not be able to claim the safeguard provided by clause (2) of Article 311 because their employment was under a contract for a specific period only. To my mind, there is no difference in principle if the temporary employment is for a specified period or for an unspecified period, While I am not inclined to hold that temporary servants may never be entitled to claim the benefit of clause (2) of Article 311, yet I am not prepared to go so far as to say that every temporary employee, when directed to relinquish office, can claim the same privilege. It is possible to think that even a temporary employee for a particular period or 9 similar employee without any specification of the period of his employment may act in a manner which may give rise to some complaints, and if he is to be dismissed on the basis of such complaints, I would think that the employee is entitled to show cause against his dismissal and this was the case reported in A. I. R. 1950 Lahore 59, but if the retirement is made for reasons unconnected with any comp-laint against him, a few instances whereof have been referred to above, he can have no ground for being given an opportunity of showing cause against his removal from service. The language in clause (2) of Article 311 seems to indicate that the employee is to be given an opportunity to show cause against his dismissal which is contemplated as a result of some complaint against him or as directly concerned with his actions. It may be pointed out that dismissal, removal or reduction in rank of permanent employees except on complaint of misconduct is not contemplated in this Article.
(3.) THE pensioner's services were terminated in this case not because of any complaint against him or for any misconduct on his part and, therefore, clause (2) Article 311 did not apply in this case. Being a temporary employee his services were, in the very nature of things, liable to termination. No contract between the petitioner and the Government has been relied upon by any party and no rules and regulations applicable to temporary employees in Rajasthan have been referred to, and according to the general law applicable to master and servant, in the absence of other conditions, or reasons, the services of the employee were terminable by a reasonable notice or payment of notice-pay in lieu of notice. As to what should be the period of notice and to what wages in lieu of notice the petitioner would be entitled to claim need not be determined in these proceedings. As a result, I am of opinion that in making the order of the 12th May, 1950, directing the petitioner to relinquish his appointment with effect from the date he was relieved no provision of the constitution has been violated. The petition, therefore, is not maintainable and is dismissed with costs, the Advocate's fee being assessed at rupees one hundred. The learned Advocate for the petitioner prayed that a certificate under Article 132 be granted for appeal to the Supreme Court. I am of opinion that the case involves a substantial question of law as to interpretation of the Constitution and a certificate is granted accordingly. Gupta, J.- I entirely agree with the judgment of my learned brother Bapna J. and have nothing to add. .;