DAVE, C. J. - (1.) THIS is a writ application under Art. 226 of the Constitution of India.
(2.) IT is common ground between the parties that the petitioner was appointed as Textile Inspector by the Dewan of the former State of Jaisalmer on 1st October, 1948, for two months. The period of his service was extended from time to time before the State of Jaisalmer merged with the United State of Rajasthan. In other words, he was not given a permanent appointment so long as the erst-while State of Jaisalmer was in existence. On 30th January, 1961 the petitioner was served with a notice Ex. 16 by the Collector, Jaisalmer. In the said notice, it was stated that the petitioner's appointment in Government service as Textile Inspector was a temporary one, that the post of the Textile Inspector was abolished in the process of winding up of the Civil Supplies Department, that he was thereafter absorbed against the temporary post, of Civil Supplies clerk in. Tehsil Nachana, headquarter Nokha, on the same pay which he was drawing as Textile Inspector, that his services were no longer required by the Government and that his services should be deemed to be terminated after the expiry of one month from the date on which the notice was served upon him. IT is the validity of this notice which is sought to be challenged by the present application. It is averred by the petitioner that after the formation of the United State of Rajasthan, he was given permanent appointment and absorbed as a clerk in the office of the District Supply Officer, Jaisalmer, although he was appointed on the same pay and grade in which he was working as Textile Inspector. Thereafter he continued to work as a clerk on a permanent basis. On 3rd August, 1954 he was suspended and a departmental enquiry was ordered against him. He was also prosecuted for an offence under sec. 409 of the Indian Penal Code. He was acquitted by the Court of the said charge. The departmental inquiry continued for a long time and ultimately he was reinstated, but he was allowed only subsistence allowance for the period of his suspension. The period of suspension having lasted for six of seven years, the petitioner was put to a heavy loss and, therefore, he gave a notice to the Government and also filed an appeal against the order whereby full salary was not allowed to him for the period of suspension. This appeal was preferred on or about 19th December, 1960. It is alleged by the petitioner that the notice served by him and the appeal preferred by him irritated the authorities and, therefore, his services were terminated by the notice Ex. 16, dated 30th January, 1961. It is contended by the petitioner that he was a permanent employee of the State, that the termination of his services had a tinge of penal action and since the procedure laid down under Art. 311 of the constitution of India was not followed, the order terminating his services should be quashed. In reply, it is not admitted on behalf of the non-petitioners that the petitioner was a permanent employee of the State of Rajasthan. It is urged that prior to the merger of the State of Jaisalmer with the State of Rajasthan, his appointment was always for a temporary fixed period. Even after the formation of the United State of Rajasthan, he was not made permanent. His services were utilised in the Civil Supplies Department, which was itself a temporary department in all respects. When the Civil Supplies Department was disbanded, some of its employees were absorbed, while the services of others were terminated. The services of the petitioner were never made permanent by an appropriate authority and, if by oversight or some clerical mistake, he was shown as permanent in any paper, that did not give him status of permanent employee. It is also denied by the non-petitioners that the services of the petitioner were terminated by way of punishment. It is prayed that writ application should be dismissed. Now, the first question, which arises for determination before the Court is, whether the petitioner was a permanent employee of the State or he was continuing as a temporary employee by the time his services were terminated (vide Ex. 16 ). In this connection, learned counsel for the petitioner has referred to Ex. 6 and urged on its basis that his client was given permanent appointment by this order. He has also relied upon Exs. 17, 18, 19 and 20 which are pay bills for the month of July, 1953, August 1953, September 1954 and June 1953 respectively. As against these documents, the non-petitioners have referred to Ex. 3, which is another order of the Collector, dated 7th September, 1953, Exs. 4 and 5 which are pay bills for the months of November, December, 1955 and January, 1956 and February, 1956 respectively. Before we (proceed to weigh the said evidence, it may be observed that the question, whether a particular employee of the state was in temporary service or in permanent service, is a mixed question fact and law; rather it is more a question of fact than of law and we have to see if it is possible to decide it satisfactorily on the basis of the documents which have been placed on record. The petitioner's averment to the effect that he was in permanent service is seriously contested on behalf of the non-petitioners. The document Ex. 6 on which main reliance is placed by the petitioner does not show that it was an order of appointment. A perusal of this order shows that it was issued by the Collector in order to post and transfer certain clerks at different places. It was mentioned in the order that "the following minimum staff is retained for purposes of Civil Supplies work in Sub-Division, Jaisalmer of Jodhpur District and undermentioned consequential postings or transfers are ordered with immediate effect. " The use of the word 'retained' shows that the staff was retained as permanent if it was permanent and it was retained temporarily if it was temporary. If a particular employee was in temporary service, it would not make him permanent on account of the use of this word. Similarly, if there was an employee in permanent service, it could not reduce him to the status of a temporary employee, simply because he was retained for purposes of Civil Supplies work. The only entry, which can be of some help to the petitioner is Column No. 4 of Ex. 6. The heading of Column No. 4 was "permanent and temporary". In that column, the first name of Shri Premraj, who was supervisor, was shown as permanent. Thereafter nine other names were mentioned below him and before their names also "ditto" was typed in the fourth column. According to learned counsel for the petitioner, the fact that ditto was placed against the name of his client, would show that he was absorbed as a permanent employee, while, according to learned counsel appearing for the State, this was only a typing mistake and that the typist instead of showing that a particular clerk was permanent or temporary, typed the word 'do' against each one of them. It is difficult for us to determine from the mere perusal of this document as to which of the two versions is correct. The examination of the typist and the Collector, who signed the order and the production of the further documents may be necessary to give a correct finding as to whether the petitioner and others who were mentioned in the said list were all absorbed on permanent basis or whether some of them only were permanent and the rest continued to be temporary. Similarly, Exs. 17 to 20 are printed forms of pay bills of the Establishment of the Government of Rajasthan. These forms are meant both for permanent establishment and for temporary establishment. The words 'permanent' and 'temporary' are both printed over the line. In the forms Exs. 17 to 20, the word 'temporary' appears to have been struck off. According to learned counsel for the state, the word 'temporary' was struck off wronly either by mistake or by interested persons who were out to help the petitioner. He relied on, Exs. 4 and 5 which are also copies of pay bills and on one more document which is T. A. Bill for the month of March, 1954. In these three documents, the word 'temporary' was retained and 'permanent' struck off. It is further urged that the word 'permanent' was struck off even before it was signed by the petitioner. Learned counsel for the petitioner has urged, on the other hand, that the T. A. Bill was for the year 1953 and it has been shown as that of 1954 later on. It is also urged that the word 'permanent' was struck off later on and not before the document was signed by the petitioner. It is not possible for us, without recording all the evidence, to determine the question whether the changes were effected before or after the T. A. Bill was signed by the petitioner. It would suffice to say that these documents by themselves would not give the petitioner the status of a permanent employee if a permanent appointment was not given to him by a specific order of the appointing authority. If, in a pay bill of a temporary employee, he is shown by mistake as a permanent employee, that would not by itself give him a status of a permanent employee. Similarly, if by mistake, a permanent employee is shown as temporary one in a pay bill; it would not reduce him to the status of a temporary servant. On the basis of the record, which has been placed before us, we are not in a position to give a firm finding whether the petitioner was given a permanent post. It is urged by learned counsel for the petitioner that even if it be assumed for the sake of the argument that his client continued as a temporary employee till 30th January, 1961, the notice (Ex. 16) should be quashed because his client's services were terminated by way of punishment. It is contended that the provisions of Art. 311 of the Constitution would apply even in the case of a temporary employee if his services are terminated by way of punishment. In support of his argument, learned counsel has referred to Parshotamlal Dhingra Vs. Union of India (1 ). In that case, it was observed by their lordships of the Supreme Court that - "an appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and bis tenure cannot be put an end to during that period, unless he is, by way of punishment, dismissed or removed from the service. " It was further observed that - "just as Art. 310, in terms, makes no distinction between permanent and temporary members of the services or between persons holding permanent or temporary posts in the matter of their tenure being dependent upon the pleasure of the President or the Governor, so does Art. 311, make no distinction between the two classes, both of which are, therefore, within its protection and the decisions holding the contrary view cannot be supported as correct. " It is clear from the said observations that the protection of Art. 311 of the Constitution is as much available to a temporary employee as to a permanent one, but that protection would be available to a temporary servant only if his temporary appointment is made for a certain specified period and if that appointment is terminated earlier. It may be pointed out that in the same case after discussing a number of cases, their lordships summed up the correct position of law as follows - "any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand vs. Union of India (AIR 1953 S. C. 250 ). Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Art. 311 (2), as has also been held by this Court in Shyamlal vs. State of Uttar Pradesh (AIR 1954 S. C. 369 ). In either of the two above mentionned cases, the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under R. 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla C. J. has said in Shrinivas, Ganesh vs. Union of India (AIR 1956 Bom. 455) wholly irrelevent. " In the present case, it has been pointed out on behalf of the non-petitioners that according to Rule 23a of the Rajasthan Service Rules, the service of a temporary Government servant who is not in a quasi-permanent service. , is liable to termination at any time by notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant. The period of such notice shall be one month, unless otherwise agreed to by the Government and by the public servant. It is clear from the said Rule that the services of a temporary servant, who is not in a quasi-permanent service, can be terminated by the Government at any time by giving him one month's notice in writing. In the present case also, the petitioner was given one month's notice vide Ex. 16. A perusal of this notice does not show if his services were terminated by way of punishment. On the contrary, it makes a specific mention of Rule 23a of the Rajasthan Service Rules and is completely silent about the character of the petitioner's services in the past. Learned counsel for the petitioner has sought to invoke Art. 311 of the Constitution by contending that his order was tantamount to an order of dismissal, because his client had irritated the authorities by giving them notice demanding full pay for the period of his suspension. It may be observed that it would not be proper for us to draw such an inference against the Government, simply because the petitioner was suspended in the past and reinstated after a departmental inquiry. We have already pointed out above that their lordships of the Supreme Court have themselves observed that whatever may be the motive or the inducing factor influencing the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant. Learned counsel for the petitioner has referred to a judgment of their lordships of the Supreme Court, P. C. Wadhwa Vs. Union of India (Civil Appeal No. 720 of 1962 decided oh 27th August, 1963 ). In that case, it was found by their lordships after going through the record, which was placed before them, that Mr. Wadhwa was not reverted i for administrative reason like the unavailability of posts; but the main object on account of which his reversion was sought was to facilitate the departmental enquiry and that instead of suspending him during the pendency of the enquiry, resort was had to his reversion on the vague ground that he was a problem child and an immature person. The order, which was, therefore, passed by their lordships, was given in the special circumstances of that case. In the present case, a departmental inquiry was held against the petitioner and thereafter he was reinstated. In the departmental inquiry itself, he was not completely exonerated. If the authorities so wanted, they could have given him a higher punishment and dispensed with his services. On the contrary, he was reinstated and thereafter, since he was a temporary employee, his services were terminated under Rule 23-A of the Rajasthan Service Rules. The record, which has been placed before us, does not show any kind of remarks like the one which were passed by different authorities on the file of Mr. Wadhwa. We are, therefore, not in a position to hold that the petitioner's services were terminated mala fide. Under the circumstances, the writ petition cannot succeed and it is hereby dismissed. No order as to costs. . ;