Modi, J. - (1.) THIS is a civil regular second appeal by the State against the judgment and decree of the District Judge, Pratapgarh dated the 15th February, 1960, upholding the judgment and decree of the Civil Judge, Chittorgarh, dated the 28th July, 1959, in a suit for declaration.
(2.) THE material facts leading up to this appeal may be shortly stated as follows. THE plaintiff was appointed an Overseer on a five years' contract by the State of Kotah, as it then was, on the 28th June, 1946, Ex. A-1. THE State of Kotah was then integrated with the first United State of Rajasthan sometime in 1948 and thereafter with what may be called the larger United State of Rajasthan in 1949, which eventually became part B State of Rajasthan under the Constitution when it came into force on the 26th January, 1950. It is admitted between the parties that the services of the plaintiff were extended upto the 3rd February, 1952. THEre is nothing to show that thereafter there was any further order of the extension of his services by any competent authority. But the fact remains that the plaintiff continued to work as a surplus hand in the office of the Executive Engineer at Bhilwara until the 8th December, 1952. On that date he applied for one month's privilege leave which does not seem to have been granted to him. Notwithstanding that, he admittedly left his place of posting and joined service with the Municipal Board of Ujjain in Madhya Pradesh with effect from the last-mentioned date. Reference may conveniently be made at this place to an application Ex. A-10 filed by the plaintiff himself to the Superintending Engineer, P. W. D. , B. & R. , Udaipur, dated the 8th February, 1953 wherein the plaintiff admitted that he had temporarily joined as an Overseer on six months' probation in the Ujjain Municipality with effect from the 8th December, 1952. In this application he stated that he had applied for one month's privilege leave in connection with the treatment of his wife obviously suggesting thereby that that leave had not been sanctioned to him. He then stated that he had tried his best to get himself transferred from Chittorgarh to a suitable place ; but he had failed, and thereafter he had received an order from the Assistant Engineer Chittorgarh that he had been transferred to Dungarpur, and the plaintiff complained that that was not a suitable place to go to as it was entirely cut off from his relatives and was very far away from his native place. In conclusion he submitted that he was on six months' probation in the Ujjain Municipality and that until he was confirmed he was not in a position to resign from his service in the Rajasthan State, and, therefore, permission might be granted to him to continue his service in Ujjain or if no such permission could be granted to him, he might be informed accordingly so that "i may consider for any future career". By his letter Ex. 5 dated the 13th February, 1953, the Assistant Engineer Chittorgarh called upon the petitioner to resume his duties within a week at the place where he had been transferred arid also pointed out to him that his having taken up an emloy-ment outside the Rajasthan State without obtaining prior permission was irregular and that if he did not resume his duty within a week it would be presumed that he did not want to serve the Rajasthan State and that necessary action would be taken in that connection. It seems that the plaintiff paid no heed to this letter and so by an order dated the 16th February, 1953 (Ex. A-6) the Superintending Engineer, Udaipur terminated the services of the plaintiff with effect from the date he had left his headquarters. This order reads as follows : - PUBLIC WORKS DEPARTMENT RAJASTHAN No. 12003-06/2160/c udaipur, February 12/16, 1953. OFFICE ORDER As Shri Kashi Ram has already accepted employment with the Municipal Committee without previous sanction of the Government and has been absent from his headquarters without leave his services are hereby terminated with effect from the day he left his headquarters. Sd/-Superintending Engineer P. W. D. (B & R), Udaipur. Aggrieved by this order, the plaintiff has instituted the suit, out of which this appeal arises, on the 2nd January, 1956, in the court of the Civil Judge, Chittorgarh, (after giving the requisite statutory notice to the defendant State under sec. 80 of the Code of Civil Procedure ) wherein it was contended that the order of the Superintending Engineer terminating his services was violative of Art. 311 of the Constitution for two reasons ; the first being that the order had been passed without affording any reasonable opportunity of defence to the plaintiff and the second being that the superintending Engineer Udaipur was not competent to terminate his services as he had been appointed by the Government of Kotah in 1946. THE plaintiff, therefore, prayed for a declaration that the order of the Superintending Engineer, Udaipur, dated the 16th February, 1953, by which he terminated the services of the plaintiff be declared to be illegal, void and inoperative and he further prayed for a declaration to the effect that the plaintiff still continued in his service and that he was entitled to his salary and other allowances for which he was eligible under the rules. The defendant State resisted the suit. The principal contentions raised by it were that the plaintiff was not entitled to the benefit of Art. 311 of the Constitution as he had himself joined the service of the Municipal Board at Ujjain in a different State and further that the plaintiff had been appointed on a term of five years on the 28th June, 1946, and thereafter extension had been granted to him upto the 3rd February, 1952, but no extension beyond that date had ever been granted suggesting thereby that he was not at all an employee in the civil service of the State within the meaning of Art. 311 of the Constitution. It was also urged that according to rule 64 of the Rajasthan Service Rules 1951 no State employee could accept employment under any other employer without the permission of the State. On these pleadings, the trial court framed a number of issues and decreed the plaintiff's suit in toto. The defendant State went up in appeal to the learned District Judge Pratapgarh but without any success. Consequently, it has come up with the present appeal to this Court. In this appeal, the learned Government Advocate has raised the following contentions : - ¦ (1) that having regard to the circumstances of his appointment, the plaintiff did not hold any civil post under the State of Rajasthan at the relevant time within the meaning of Art. 311 of the Constitution. (2) that the impugned order by which the Superintending Engineer Udaipur terminated the services of the plaintiff does not amount to an order of removal within the meaning of the said Article, and (3) that in any case the declaration granted by the courts below that it be taken that the plaintiff continued to be in the service of the Rajasthan State and that he was entitled to draw his pay upto the time his services are terminated by a proper authority and in a proper manner is entirely unwarranted in all the circumstances of the case. I propose to take up the second question first. Now, the finding of both courts below on this aspect of the case is that the impugned order was a penal one and consequently it fell within the four walls of Art. 311. I have already set out the order of the Superintending Engineer at length, and it seems to me that both courts below felt persuaded to come to the conclusion to which they did because the order gave certain reasons on account of which the services of the plaintiff were terminated. These reasons were (1) that the plaintiff had already accepted employment with the Municipal Committee, Ujjain, without the previous sanction of the Government and (2) that he had been absent from the headquarters without previous permission. It is strenuously contended by the learned Government Advocate that merely because the two reasons to which I have referred above were mentioned in his order by the Superintending Engineer, it should not have been assumed by the courts below that the order was in the nature of a penalty. It was further submitted in this connection that the facts mentioned in the order flowed from the application Ex. A-10 filed by the plaintiff himself to the Superintending Engineer and these had not been mentioned with a view to make any imputation against him but were simply mentioned as matters by which the contract of service between the plaintiff and the defendant State had come to an end, in the very nature of things. It was also submitted in this connection that the courts below had not taken sufficient note of the fact that the plaintiff was, after all is said and done, a temporary servant on a fixed tenure which in spite of the extensions had come to an end before the order of termination of the plaintiff's services was passed, and, therefore, the plaintiff had no right to hold the post at the date his services were terminated. On the other hand, it was equally strenuously contended by learned counsel for the plaintiff that the order of the Superintending Engineer in question had been passed as a measure of punishment against the plaintiff and therefore, it amounted to an order of removal within the meaning of Art. 311 of the Constitution and that that being so, the said order was entirely void, illegal and inoperative in law inasmuch as it had been passed without any opportunity of defence having been afforded to the plaintiff. I have given my most careful and anxious consideration to this aspect of the case and although I am free to admit that the case is not free from a certain amount of difficulty, I have on the whole definitely come to the conclusion that the order which is challenged in this case does not properly amount to an order of removal within the meaning of Art. 311 of the Constitution. It is correct that the order has mentioned certain reasons in it to which I have made a detailed reference already. But I am not persuaded to hold that merely because these reasons have been mentioned therein, it amounts to an order of removal so that it attracts the provisions of Art. 311. The principal reason which has induced me to come to this conclusion lies in the peculiar circumstances of the present case. It is indeed common ground between the parlies that the plaintiff had been appointed as an overseer by the Government of the former Stale of Kotali in 1946 for a fixed term of five years and that term was extended from time to time upto the 3rd February, 1952. There is material on the record to show that thereafter for some reason or another which it is not clear from the record, no further extension so far as his fixed tenure was concerned was allowed to the plaintiff. Reference may be made in this connection to Ex. A-9 which is a letter from the Chief Engineer P. W. 1 ). (B. & R.) Rajasthan Jaipur to the Superintending Engineer Udaipur from which it clearly appears that the plaintiff's term as Over-seer had expired on the 6th Feb. , 1952 (this seems to be a mistake for 3rd February, 1952, but that is immaterial), and it was further pointed out that no action in that connection appeared to have been taken and Kashiram ( plaintiff) was allowed to continue to remain in service without competent sanction and that that was a case of irregularity on the part of the Superintending Engineer. It is in this state of circumstances that the plaintiff left his place of posting in early December, 1952 and took up employment as an Overseer with the Municipal Board,ujjain. That he had done so is indeed not a fact which calls for any investigation because he has himself admitted it in his application Ex. A-10 dated the 8th February, 1953, which he addressed to the Superintending Engineer, Udaipur. It is also a fact that the plaintiff had left his headquarters without obtaining any leave nor any leave had been sanctioned to him for the period with which we are concerned. The question, therefore, is whether it can be said, having regard to the contents of the order of termination of the plaintiff's services passed by the Superintending Engineer, that it contained any imputative element in it ? My answer to this question is in the negative. All that the Superintending Engineer in his impugned order wanted to be conveyed to the plaintiff was a bare narration of the events that had happened, and these facts hardly call for an inquiry, and in any case an inquiry into them would have been simply futile in view of the admissions contained in the petitioner's own application Ex. A-10. While I am on this aspect of the case, I feel tempted to refer to rule 13 of the Rajasthan Service Rules which is in these terms - "unless in any case it be otherwise distinctly provided the whole-time of a Government servant is at the disposal of the Government and he may be employed in any manner required by proper authority, without claim for additional remuneration, whether the services required of him are such as would he remunerated from the Consulidated Fund or from a Local Fund. " This has been referred to in the Rules as a fundamental condition of service, and indeed that is so. A Government servant is undoubtedly a whole-time servant of the Government which he has agreed to serve. The question, therefore, is whether such a servant, who takes up whole-time employment with any other employer and particularly when that employment happens to be outside the State, can still maintain with any justification that he is in the civil employment of the State from whose service he has withdrawn himself by his own conduct. For that is what the plaintiff did in the present case. I have no doubt that a Government servant cannot take up another whole-time service while still under Government employment which is, as I have already pointed out above, a whole-time service according to rules, with any other employer, and if he does so, he sacrifices his government service by the very nature of his service conditions. If I may say so, it seems to me that this is more of a case wherein it can be legitimately postulated of a person in the position of the plaintiff that he has by the act of his accepting whole-time employment with another employer removed himself from the service of the Government in whose employment he was rather than, or in any case, before the Government happens to remove him from its service. That being so, I feel disposed to hold that this is a case which does not substantially or legitimately fall within the meaning of the expression "removal" as used under Art. 311 of the Constitution. And if this is the comet conclusion to come to in the peculiar circumstances of the case which I have fully discussed above, as I think it is, then in my judgment the courts below fell into an error when they held that the plaintiff's case fell within the scope of the Article in question. In this view of the matter, I do not consider it necessary to make any pronouncement on the first contention raised by the learned Government Advocate set out above. Before concluding this judgment, however, I wish to say a word about the third contention raised in this appeal, and that is whether the courts below were justified in granting a declaration to the plaintiff that he should be deemed to continue in service until an order of termination of his services was passed by a proper authority and in a proper manner, and, further, that he would be entitled to his salary and other dues during this entire period. It clearly seems to me that in giving this declaration, the courts below fell into a manifest error, having regard to all the circumstances of the case. It is admitted by the plaintiff himself that while he was in the service of the State and without obtaining prior permission he left his place of posting and took up employment with another employer and was obviously drawing emoluments on his new post. All that being so, I have no hesitation in saying that the plaintiff was in no manner entitled to the kind of indulgence which the courts below seem to have thought fit to grant him. But it is unnecessary to pursue this matter further as I have, on the whole, come to the conclusion that the present suit does not rightly attract the provisions of Art. 311 of the Constitution. For the reasons mentioned above, I would allow this appeal, set aside the judgments and decrees of the courts below and dismiss the plaintiff's suit. Having regard to all the circumstances of the case, the plaintiff shall pay half the costs to the defendant State throughout. . ;