T.P. Mukherji, J.
1. The present appeal against a judgment and decree of dismissal is by the plaintiff who is a discharged Government servant in the Bengal Fire Service and who instituted a suit for a declaration that the order of his discharge which in effect is alleged to be an order of dismissal is void and inoperative, for a further declaration that he continues to be a member of the Bengal Fire Service and is as such entitled to all the benefits thereof and for a consequential relief in the shape of a decree for arrears of salary to the extent of Rs. 9,120/- with interest thereon at the rate of six per cent per annum. His case as made outin the plaint was that he was appointed as a Station Officer in the District of Barisal in August 1945 on probation for a period of three months and was confirmed in that appointment on December 19, 1945. His pay as such Station Officer was Rs. 75/- per month together with dearness allowance of Rs. 75, and he claims to have subsequently earned an increment of Rs. 10 per month on his salary.
2. On the partition of the province of Bengal in August 1947, the plaintiff opted for West Bengal and was posted as a temporary Sub-Officer in the Calcutta Fire Service. By an order of the Government dated April 18, 1950, the West Bengal Fire Service and the Calcutta Fire Service were amalgamated and a new set up was created. In the same month a Selection Committee was appointed by the Government for selection of officers of different ranks in the new set up of the Fire Services and the plaintiff was selected and posted provisionally as a Sub-officer in the new set up and one of his grievances is that thereby he was reduced in rank without hearing. In June following a Committee for reviewing the appointments already made was constituted and the plaintiff was again interviewed along with the other officers. On July 3, 1950, he was, however, surprised when he was served with an order purporting to be one of dismissal from the service. That order was passed by the Director of Fire Services without giving him any opportunity to show cause and on August 3, 1950, be was served with another order dismissing him from service with effect from August 1, 1950. This order was challenged as mala fide and malicious, but this allegation was ultimately not pressed at the hearing.
3. The plaintiff stated that he does not know and was never intimated the reasons for his earlier reduction in rank and later discharge from the service. He protested against the order, but to no effect. Hence, the suit for the reliefs stated above.
4. The defendant State of West Bengal filed a written statement denying the material allegations in the plaint. It was stated that the plaintiff was appointed a Station Officer in Barisal on a temporary basis. The claim of an increment of the salary by Rs. 10 per mouth was denied.
5. After the partition of the province the plaintiff was stated to have been temporarily posted as a sub-officer in the Calcutta Fire Brigade. It was denied that this posting implied a reduction in rank. When the new set up was created he, was appointed provisionally as a sub-officer. This also, according to the defendant, involved no reduction in rank of the plaintiff and the plaintiff in the circumstances was not entitled to any hearing as no penalty was sought to be imposed or was imposed thereby. The subsequent termination of his service is stated to have been validly made and it is stated that the plaintiff is not entitled in know the grounds of termination of his service.
6. The defendant further denied the existence of any binding contract with the plaintiff so far as his service under Government was concerned and denied that be was entitled to any of the reliefs sought for.
7. On the question of ft valid service contract between the plaintiff and the defendant, it was contended before the trial court on behalf of the defendant, State of West Bengal, that such contracts have to be made in terms if Art. 299 of the Constitution and that the requirements thereof not having been met in the present case, there was no such valid contract of appointment which could be enforced by suit. The learned Judge held that the word 'contract' in Article 299 must be given a restricted meaning so as to leave out the case of Government employees whose employment though originating in a contract is regulated after appointment by statutory rules and not by contract. In this view of the matter it was held that the plaintiff had been validly appointed.
8. It was further held by the trial court that the plaintiff' was a temporary. Government servant, that his service was terminated and that he was not dismissed as alleged and that as he did not hold any substantive post of a permanent character, the termination of his service was quite in order and did not amount to a punishment and also that as such Art. 311 of the Constitution would not be attracted to the case.
9. Against this judgment and decree the plaintiff has filed this appeal and the defendant has filed a cross-objection. Mr. Sen Gupta appearing Oil behalf of the appellant contended !hat the plaintiff having been confirmed in his appointment by the chief executive head of the department, is the evidence has disclosed, should be treated as a permanent Government servant whoso services could not be terminated without giving him sufficient opportunity to show cause against it.
10. Mr. Sen Gupta's next contention was that the West Bengal Subordinate Service Rules which would apply to the plaintiff do not make any distinction between permanent and temporary employees and that the termination of service in the manner in which if was effected in the present case would amount to dismissal and the plaintiff as such must be held to have been dismissed on a denial of the protection of Article 311.
11. The further contention on behalf of the appellant was that the order of discharge in any event could not have been passed on the basis of the report of the Reviewing Committee which had no basis in the Rules or law and is therefore liable in be set aside on that ground.
12. So far as the cross-objection is concerned, it was urged on behalf of the respondent that the Court was wrong in holding that Article 299 of the Constitution is not attracted to service contracts.
13. It appears from Exhibit A (D. D. No 17 at page 49 of the Paper Book) which is a letter dated March 22, 1943 addressed by the Additional Secretary to the Government of Bengal in the Public Health and Local Self Government Department that previously the Government had some Trailer Pump Squads in some of the districts besides the Calcutta Fire Brigade in Calcutta. For reasons stated in the letter the Govt. decided to constitute Trailer Pump Squads in the districts into a Service called the Bengal Fire Service and to appoint the Fire Adviser as the executive head of that service with the designation of Chief Inspector, Bengal Fire Services. This is how the Bengal Fire Service came into existence.
14. P. D. No. 1 at page 51 of the Paper Book shows that the Chief Inspector, Bengal Fire Services appointed the plaintiff as a Station Officer, B. F. S, for Barisal, on probation for three months and P. D. No. 3 at page 55 shows that on December 19, 1945 the plaintiff was confirmed as Station Officer Barisat up till the 28th of February, 1946.
15. The Trailing Pump Squads with their establishments appear to have been created during the war as a temporary measure and the Bengal Fire Service that came into existence was also a temporary service which was sanctioned for specified periods from time to time. D. D. No. 1 at page 52 of the Paper Book shows that the entire establishment was sanctioned for the period from September 16, 1945 to February 28, 1946. There must have been previous similar sanctions which were not produced in the case. D. D. 2, 4, 5 and 20 would show further periodic sanctions for retention of the temporary service up to August 31, 1947. The plaintiff who was appointed in the year 1945 continued to serve the temporary department throughout this period.
16. On August 15, 1947 there was the partition of Bengal. D. D. No. 18 printed at page 68 of the Paper Book which is a Government menu gives instructions for the posting on and from the date of the partition, of Government Servants serving in that part of the province which came to be known as East Bengal who had opted for service in West Bengal and had been assured of employment in the latter State. The plaintiff had opted for West Bengal and he was posted by virtue of the above memorandum as a Sub-Officer in the Calcutta Fire Service.
17. With the partition, the Bengal Fire Service came to be known as the West Bengal Fire Service so far as the establishment of the service in West Bengal was concerned. The fire service, we have seen had been sanctioned by D. D. 20 up till August 31, 1947. Subsequent sanctions which were D. D. 21, 1.9 and 9 extended the life of the service from time to time, up till August 31, 1948. Similar temporary sanctions which do not appear to have been produced in the case extended the life of the temporary service up till March 1950 and thereafter. D. D. No. 13 printed at page 96 of the Paper Book shows that with effect from April 18, 1950 a Directorate of Fire Services was created by Government by amalgamation of the existing West Bengal Fire Service and the Calcutta Fire Brigade and the post necessary for maintenance of the Directorate were sanctioned. The memorandum stated
'these posts will continue with effect from the 18th April 1950 to the 28th February 1951, but if the new set up works satisfactorily, it is the intention of Government to put them on a permanent basis'.
With the setting up of the Directorate, the W. B. Fire Service lapsed.
18. Statement B which was a part of the above memorandum listed the staff that was provisionally selected from amongst the existing personnel of the West Bengal Fire Service and the Calcutta Fire Brigade to fill up the posts mentioned in the statement and it would appear that the plaintiff is included in the list of 40 Sub-Officers included in that statement.
19. Although there is nothing to indicate that the West Bengal Fire Service had not been made a permanent service under the Government between August 31, 1948 and April 17, 1950. the plaintiff nowhere suggested that that service had at any time been made permanent. The plaintiff by virtue of his appointment in 1945 continued to be a member of that service and was provisionally selected for absorption in the Directorate that was created. It was contended on his behalf that he having been confirmed in the Bengal Fire Service in the year 1945 should be treated as a permanent Government servant. This claim of permanency is based on P. D. No. 3 printed at page 55 of the Paper Book whereby the Chief Inspector, Bengal Fire Service informed the District Magistrate. Barisal that--
'..... I have to confirm Babu Ranjit Kumar Chakraborti as Station Officer, Barisal up till the 28th February 1946.'
D. D. No. 1 at page 52 shows Unit the department itself was sanctioned up till February 28, 1946.
20. The service itself being a temporary one, being kept alive by periodic Government sanctions, all appointments thereto were subject to the tenure of the service and limited to the sanction therefor. The idea of permanency of service in the case of persons appointed to a temporary service of post is against common sense because appointments to a temporary service cannot have any tenure in excess of a tenure that the service itself possesses. In view of this the 'confirmation' that is referred to in P. D. No. 1 at page 51 and in P. D. No. 3 at Page 55 of the Paper Book, must be treated as confirmation as a temporary employee whose tenure of service; unless otherwise terminated was at best limited to the tenure of the Bengal Fire Service; itself. We cannot accept Mr. Sen Gupta's contention that the appellant was a permanent Government servant even though the service to which he was appointed was and continued to have limited tenures throughout. It may also be mentioned in this connection that although the plaintiff was found by the trial court to have been a temporary Government-servant, that finding is nowhere challenged in the grounds taken in the memorandum of appeal printed at page 43 of the paper book, We hold agreeing with the learned trial judge that the plaintiff was a temporary Government employee at the time his services were terminated.
21. Plaintiff continued in service in a temporary capacity on the date the new set up was created under a Director of Fire Services by Government Memo D. D. No. 13 referred to above. The appointment referred to therein, so far at least as the plaintiff was concerned had as its basis a tentative selection made by a selection board from amongst the existing staff in April 1950. In pursuance of that memorandum the Director wrote to the plaintiff the letter P. D. No. 8 at page 113 of the Paper Book intimating him of the selection and that he had been 'provisionally appointed as a Sub Officer in the new set up with effect from 18th April 1950 and you will continue to draw your existing pay until further orders.'
22. Thereafter admittedly another committee was appointed by the Government for review-ing the appointment of officers of the West Bengal Fire Service in June 1950 and the said Committee interviewed the officers including the plaintiff. As a result of this review the plaintiff was found unsuitable and by letter P. D. No. 10 which is also D. D. No. 15 printed at page 118 he was informed that he was found
'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.'
This letter is dated June 30, 1950. By the same letter the plaintiff was further given the option of serving in the rank of a Leader and was asked to intimate his decision in that regard by July 8, 1950 to the Director. The plaintiff admittedly did not intimate his decision and on August 3, 1950 the Director of Fire Services wrote to him a letter stating that
'the undersigned has to inform him that he has been discharged from the West Bengal Fire Services with effect from 1st August 1950 for not intimating to this office his decision regarding the acceptance of the post of a leader within the 8th July 1950.'
The declaration that the order of dismissal passed on the plaintiff is void and inoperative relates to this letter.
23. The trial court found that the letter dated August 3, 1950 does not contain the order of discharge but that it is a mere intimation about the discharge that had already become effective and that it is the letter dated June 30, 1950 which contains the order of discharge on the expiry of the month's notice that was served thereby. The learned Judge considered the two letters together for the purpose of determining the validity or otherwise of the termination of service in the case.
24. The position thus is that the plaintiff who was a temporary Government servant was provisionally selected for appointment in the new set up which was created temporarily for a specific period and was during that period discharged on the ground of unsuitability as a result of a review of the provisional selection. It is the case of the plaintiff-appellant that as he was discharged on the ground of unsuitability, the action of the Government amounted to a punishment and as such attracted the provisions of Article 311(2) of the Constitution. On behalf of the respondent it was urged that the Government was within their rights to make enquiries as to suitability for the purpose of selection of incumbents for the new set up that was intended to be made permanent and that the provisional appointment that was given to the plaintiff pending the final selection never gave him a right to the post and further that the absence of such a right together with the fact that the discharge did not entail any penal consequences would not entitle the plaintiff to the protection of Article 311(2) of the Constitution and did not cast on the Government the liability of affording reasonable opportunity of showing cause against the action proposed to be taken.
25. There is no question that the protection of Article 311(2) of the Constitution extends both to temporary as well as permanent Government servants. The innocuous term 'discharge' in relation to a temporary Government employee may conceal a sting. As was held in Dhingra's case, : (1958)ILLJ544SC
'The use of the expression 'terminate' or 'discharge' is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, viz.
(1) whether the servant had a right to the post or the rank or
(2) whether he has been visited with evil consequences of the kind hereinbefore referred to. If the case satisfies either of the two tests then it must be held that the servant had been punished and the termination of his service must be taken as a dismissal or removal front service ..... and if the requirements of the Rules and Article 311 which give protection to Government servants have not been complied with, the termination of the service ..... must be held to be wrongful and in violation of the constitutional right of the servant.'
26. In the case of a temporary Government servant the terms and conditions of his service are to be gathered from the contract of his service whatever its nature might be. and the service rules which are attracted on appointment. If the service is terminated in terms of the contract or the rules no question of punishment would arise. The Supreme Court held in the same case at page 49 of the above report:
'in short if the termination of service is founded on the right flowing from contract or the service rules then prima facie the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has by contract or under the Rules the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may nevertheless choose to punish the servant and if the termination of service is sought to be founded on some misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with.'
27. Mr. Sen Gupta referred to the case Dhajadhari Dutta v. Union of India, : (1958)IILLJ392Cal in support of his proposition that in the case of reduction in rank Article 311(2) of the Constitution is attracted. The petitioner in that case who was a Deputy Superintendent of Police was promoted to officiate as Superintendent of Police in the year 1948. In the year 1951 he was reverted to his substantive post on the ground of inefficiency on the report of a Selection Committee which was found to have had no legal standing and no power to make any recommendation. It was found that no Rules having been framed by the Government of West Bengal as contemplated by the Indian Police Cadre Rules the committee that was set up lacked legal support and that even if the action of the Government might have been legal, the reversion visited the petitioner with penal consequences in view of the fact that he was charged with having violated an order of the superior officer. The reversion, it was found, was done by way of punishment and such being the case the petitioner was entitled to the protection of Article 311. It was further held in that case that a Government servant had a right to his post only in three cases and these three cases are:
(1) where a person is appointed substantively to a permanent post in Government service,
(2) where a person is appointed to a temporary post for a fixed term, and
(3) where a person has been appointed temporarily to a post and having been in continuous service for more than three years has been declared by the appointing authority to be fit for employment in a quasi-permanent capacity.
28. The plaintiff in this case did not belong to any of these categories. On the question of termination of service it was observed:
'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 sub-stantively 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.'
The plaintiff in the present case, as we have found. held a temporary post other than one for a fixed term in a service which itself was a temporary one; as such he had neither a right to a post nor in the circumstances of the case would the termination of his service amount to dismissal or removal. This decision thus does not help the appellant in any way.
29. The next decision relied on on behalf of the appellant is that in State of Bihar v. Gopikishore Prosad, : (1960)ILLJ577SC . That was a case of discharge of a probationer from service after an enquiry on the ground of un-suitability because of notoriety for corruption and unsatisfactory work. It was held that the respondent in the case was removed from service by way of punishment and as penal consequences would ensue as a result of casting of aspersions on the honesty of the officer concerned Article 311(2) would be attracted to the case. Nothing stated in the case has any bearing on the case before us.
30. The case, State of Bombay v. Dr. N.T. Advani, : (1963)IILLJ563Bom was another case referred to in this connection. That was a case of a Government servant employed for a specified period whose services were sought to be terminated before the expiry of the period. It was held that the order that was passed was insufficient to terminate the service and that even if it be assumed that the service was terminated, it was done against the Rules and against Article 311(2), the officer concerned having had a right to the post till the expiry of the period for which he was appointed. The facts of that case are quite different from those involved in the present suit.
31. The case, State of Orissa v. Ram Narayan Das, : (1961)ILLJ552SC involved the termination of service of a police sub-inspector on probation. The officer concerned was 'discharged for unsatisfactory work and conduct' as a result of an enquiry into alleged gross neglect of duties and unsatisfactory work. A notice had been served on him calling upon him to show cause why he should not be discharged from service. On receipt of the explanation which was duly considered, the order of discharge followed. It was held 'an order discharging a public servant even if a probationer on an enquiry of charges of misconduct, negligence, inefficiency or other disqualification may appropriately be regarded as one by way of punishment, but an order discharging a probationer following upon an enquiry to ascertain whether he should be confirmed is not of that nature. It was further held that the respondent in the case had no right to the post held by him and the order terminating his services did not carry with it any evil consequences.'
The order against the respondent in that case was held to be one of discharge and not of dismissal in the circumstances of that case.
32. The question involved in the case Jag-dish Mitter v. Union of India, : (1964)ILLJ418SC was somewhat similar to that in the case just referred to above. The appellant in that case, was a temporary clerk in the postal department whose services were terminated as a result of an enquiry on certain allegations of misconduct. A suit against the termination order having been filed on an allegation that it was bad because reasonable opportunity to show cause against the removal from service was not given, it was observed that every order terminating the services of a temporary Government servant will not amount to dismissal or removal from service within the meaning of Article 311. It will be treated as such when the termination comes by way of punishment. It was also observed that there would be no difference in this legal position even if the termination comes as a result of an enquiry for the purpose of determining the competence and suitability of the incumbent for being made permanent. Such an enquiry would be one something different from what is contemplated by Article 311 of the Constitution.
33. A review of the cases referred to above brings out the following into bold relief, so far as temporary Government servants are concerned:
(1) a simple order of discharge or of termination of service may very well mean a dismissal or removal from service.
(2) a temporary Government servant who is not employed for a specified period may be discharged on service of reasonable notice,
(3) when there is no right to a post and the termination of service is not by way of punishment, Article 311(2) would not be attracted.
(4) if the discharged Government servant is not visited with evil consequences, the discharge is not by way of punishment,
(5) an enquiry as to the suitability of a temporary incumbent for being made permanent is not one under Article 311(2) of the Constitution.
34. We have already seen that the plaintiff being appointed to a purely temporary service the tenure whereof was being extended periodically by the Government was a temporary servant with a precarious tenure. When the Directorate of Fire Services was set up on April 18, 1950 as an experimental measure he was provisionally appointed to a post which was temporarily sanctioned till February 28, 1951 in a set up that itself was temporary in character. The provisional appointment was made on the basis of a preliminary selection and was dependent for its finallsation on a review of the appointments made by the Selection Committee. It also appears from D. D. No. 2 at page 116 of the paper book that the Government decided to keep 9 posts of Sub-Officers out of 39 previously sanctioned vacant for the time being. The Reviewing Committee thus had to eliminate ten out of forty Sub-Officers selected or it may be that the reviewing committee having found 8 out of 40 Sub-Officers provisionally selected unsuitable for the job, Government decided to keep those 9 posts vacant for the time being. Whatever that be the plaintiff was found unsuitable by the Reviewing Committee and as a result he was served with a month's notice of discharge stating the ground thereof and two questions arise in this connection--
1. whether plaintiff's service was liable to be determined in any event,
2. whether the manner of termination would attract Article 311 of the Constitution.
35. As a temporary servant serving in an organisation which itself had a precarious existence, plaintiff could never have a tenure in excess of what the organisation itself had. The argument that having been confirmed by P. D. No. 3 at page 5.5, he would be treated as a permanent servant of the Government though serving in a temporary department is untenable, because the confirmation itself was up till the expiry of the then existing tenure of Bengal Fire Service Organisation as we have already seen and secondly because having been appointed to a temporary service with a precarious tenure, there was no question of permanency so long as the service itself remained temporary. With effect from April 18, 1950, the Bengal Fire Service was abolished and a new Directorate was temporarily set up by amalgamation of that service and the Calcutta Fire Brigade. The plaintiff was provisionally appointed to a temporary post in that set up as a result of a preliminary selection. The Directorate that was created as a temporary measure was intended to be put on a permanent basis and Government appeal to have been anxious to make a selection from out of the existing staff and to eliminate those not found suitable. The Directorate was given a life up till February 28, 1951, but the tenure of the plaintiff was not extended up to that date, his appointment being particularly declared to be 'provisional' in the set up. Plaintiff thus had no right to the post and if he were eliminated by the selection committee that was set up to make a selection of the staff for eventual absorption in a permanent capacity, he could have no reason for complaint. The fact that he was provisionally selected pending a review of the selection would not endow him with any greater right than what he had. The two cases, AIR 1981 SC 177 (Supra) and : (1964)ILLJ418SC (Supra) did not find fault with enquiries held solely for the purpose of determining whether a temporary servant would be allowed to continue or not and held that unless the enquiry be punitive, that is unless the temporary incumbent was sought to be punished as a 'result of the enquiry, Article 311(2) would not be attracted.
36. If an enquiry with the object of determining the suitability of a temporary servant for permanent absorption is permissible, there cannot be any limitation to the extent oi that enquiry so long as it is confined to its scope. It may take the form of scrutiny of service records or it may be in the form of a test or examination written or oral and, as as in the cases mentioned above, may embrace investigations into complaints received against the temporary incumbent. The nature and extent of enquiry is entirely dependant on the discretion and decision of the appointing authority and it is not for the servant concerned to make a grievance out of it or to say that the question of unsuitability cannot be raised after he had served in the organisation without any blemish for so many years. Various factors may have to be considered when the question of putting a temporary organisation on a permanent footing has to be faced as in the present case; the Government may decide to reduce the staff and that will entail elimination of some or they may decide to appoint permanently those only out of the temporary employees whom they consider suitable for the posts and in both cases they will be justified in making a selection by a method they may direct. If, therefore, in the present case the State appointed a selection committee and then another committee to review the selections made by the former committee and it as a result thereof the plaintiff was considered unsuitable, we cannot see how any legal grievance may be spun out of it.
37. We find in view of what has been stated above that the plaintiff was a purely temporary Government servant whose service could be terminated by serving a reasonable notice, he having had no right to hold any post in the Bengal Fire Service or in the West Bengal Fire Service or in the Calcutta Fire Brigade to which he was attached. We find that the enquiry that was held for the purpose of determining his suitability for permanent absorption in the Directorate of Fire Services that was contemplated to be put on a permanent basis was perfectly within the competence of the Government and that the termination of his service as a result of that enquiry was not by way of punishment with the result that the termination of his service was not a dismissal or removal within the meaning of Article 311(2) of the Constitution.
38. Another contention on behalf of the appellant on the basis of P. D. No. 18 at p. 133 of the paper book was that his discharge was by way of punishment for his refusal to intimate as to whether he was agreeable to accept the post of a Leader in the Fire Service as directed by the letter P. D. No. 10 at page 118, This argument, in our opinion, is based on a misconstruction of the two documents. By P. D. No. 18 dated June 30, 1950 the plaintiff was served with a notice of termination of his services on the expiry of a month. By the same letter he was, however, given an offer of service in a lower rank--that of a Leader and he was asked to intimate his decision by July 8, 1950. The decision was not intimated and it is thereafter that P. D. No. 18 dated August 3, 1950 followed, intimating the plaintiff that his discharge had taken effect from August 1, 1950 obviously in terms of the notice served on June 30, preceding. The later letter is not very happily worded. The discharge from the post in the officer's rank had taken effect on the expiry of the month's notice. There was no question of a discharge from the post of a Leader which had not been accepted at all. What was intended to be conveyed to the plaintiff was that the decision regarding acceptance of a Leader's past not having been communicated, he would have no further claim to any post in the West Bengal Fire Services. It is the letter dated June 30 conveying a month's notice that would be effective for the purpose of termination of the service and not the letter dated August 3, 1950, which, in our opinion, carried a mere statement of fact that had already taken place.
39. The above findings dispose of the contentions raised in the appeal on behalf of the appellant. The rejection of these contentions is sufficient for the purpose of dismissing the appeal. The cross-objection taken on behalf of the respondent relates to the finding of the trial court that Section 175(3) of the Government of India Act 1935 and Article 299 of the Constitution are not attracted to service contracts, This point was elaborately argued before us in A. F. O. D. No. 146 of 1960 (Cal), State of West Bengal v. Surath Chandra. We have held in that case that Section 175(3) of the Act of 1935 and Article 299 of the Constitution would be attracted to contracts of service where the President or the Governor makes the appointment but not in cases where appointments are made by appointing authorities prescribed by the President or the Governor by rules framed under Section 241(2) of the Act of 1935 and Article 309 of the Constitution. We have found in the above case that where the President or the Governor makes an appointment the contract leading to the appointment will have to be expressed to be made by the President or the Governor and the same will have to be executed on behalf of the President or the Governor by somebody directed or authorised by them. Where, however, appointments are made by appointing authorities prescribed by appropriate rules, an order of appointment issued in exercise of the executive power of the State under Section 17 and 39 of the 1935 Act and under Article 77 or Article 188 of the Constitution as the case may be in the name of the Governor General or the President or Governor would be sufficient for the purpose of making a valid appointment which on acceptance would at once attract the terms and conditions of the service concerned that might be prescribed in rules framed under Section 241(2) of the Act of 1935 as under Article 309 of the Constitution.
40. So far as the appointments to the subordinate services are concerned the Subordinate Services (Discipline and Appeal) Rules 1936 provide in clause 5 of part I thereof--
'all first appointments to the subordinate services not included in the schedule to these Rules shall be made by the head of the office in administrative charge of the service or post'. These Rules have been continued under the Constitution. We were handed up a copy of the Rules printed by the Government in 1955.' The schedule to the Rules does not include the West Bengal Fire Service. The plaintiff was appointed to the Bengal Fire Service by the Chief Inspector, Bengal Fire Services. D. D. No. 17 printed at page 49-50 of the paper book show that the Government appointed the Chief Inspector, Bengal Fire Services, as the executive head of that service and an appointment in the Subordinate Cadre of the service made by him would in view of our findings be perfectly in order if the order of appointment were made in the name of the Governor us required by the Government of India Article 1935. The order of appointment P. D. No. 1 at page 51 was, however, not made in the name of the Governor.
41. The provision corresponding to Section 59 of the Government of India, Act, 1935 is Article 166 of the present Constitution. In the case Dattatraya Moreshwar v. State of Bombay, : 1952CriLJ955 . it was held that Article 166 is directory and not mandatory on the principle that anything directed to be done in the performance of public duty must not prejudicially affect anybody by the failure of the public officer to do his duties strictly in accordance with the law. We find in the facts of this case that the plaintiff was validly appointed' in a temporary capacity to the Bengal Fire Service.
42. As however that temporary service was, as held by us, validly terminated, the suit, in our view, has been rightly dismissed. The appeal accordingly fails and is dismissed. The cross objection is dismissed too. Parties will bear their costs throughout.
A.C. Sen, J.
43. I agree.