B.N. Banerjee, J.
1. The case made by the petitioner, in this Rule, is that he was appointed as a male nurse, in Toke A. G. Hospital, by the Civil Surgeon at Dacca. The said appointment was said to have been made on 9-9-1944. On the eve of the partition of India, the petitioner alleges, he opted for service under the Government of West Bengal. This is denied in the affidavit-in-opposition. Nevertheless it is admitted that he was given a fresh appointment, on 20-8-1947 as a male nurse in a hospital at Burdwan, in West Bengal. According to the petitioner, he applied for ten days' leave, on 22-9-1955' on account of illness and applied successively for extension of the leave on the ground that he was in continued illness. While thus absent, the petitioner came unofficially to learn that he was being transferred to Keshpur Hospital, in the District of Midnapore. On coming to know of that, the petitioner says, he applied, on 11-10-1955 for cancellation of the order of transfer. Before that application was disposed of, the petitioner was notified on 24-10-1955 by the Superintendent of the hospital at Burdwan that the petitioner stood released from his duties at the Burdwan hospital for the purpose of joining his duties in the hospital at Midnapore. The petitioner did not join the hospital at Midnapore under the order of transfer. It further appears that the hospital at Midnapore was abolished some time in October, 1955 and the order of transfer of the petitioner thus became infructuous. Since the petitioner began absenting himself on the ground of his illness, he was directed, on 6-12-1955 to appear before the Civil Surgeon at Burdwan for medical examination. The petitioner states that he appeared before the Civil Surgeon for his medical examination but alleges that the result of the medical examination was never communicated to him. In or about the middle of January, 1956 the petitioner alleges, he applied before the Superintendent of Nursing Services for a posting. This the petitioner did, as he says, because the hospital to which he had been transferred stood abolished. On 14-6-1957, the Superintendent of Nursing Services informed the petitioner that he could not be given a posting because there was no suitable vacancy.
2. The story of the petitioner up to this stage is not wholly admitted in the affidavit-in-opposition, filed in this Rule, by the respondent Assistant Director (Nursing), Directorate of Health Services. It is stated, in the said affidavit-in-opposition, that, on 21-9-1955 the petitioner took one day's leave on account of his alleged illness but did not file any formal application for leave until 11-10-1955 and therefore the petitioner must be deemed to have been on unauthorised leave from 21-9-1955 to 11-10-1955. It is further stated in the affidavit-in-opposition that the order of transfer of the petitioner to Keshpur hospital, at Midnapore, had been made on 16-9-1955 and was communicated to the petitioner by registered post on 22-9-1955. The said registered letter was delivered to the petitioner on 6-10-1955. The order of his release from duty at the Burdwan hospital was communicated to the petitioner on 22-9-7955. There was also another letter sent to the petitioner in continuation of the letter dated 22-9-1955 on 18-10-1955, which letter the petitioner received on 24-10-1955. It is also stated in the said affidavit-in-opposition that the Civil Surgeon examined the petitioner on 11-12-1955 and directed him to join his duties within a week. In the affidavit-in-opposition it is denied that, the petitioner had applied for posting in the middle of January, 1956 and it is stated in the said affidavit-in-opposition that the first application by the petitioner asking for posting was received only on 11-6-1956. By the time that application was received, it is stated there was no post vacant wherein to place the petitioner.
3. On 3-12-1958 the petitioner applied before this Court, under Article 226 of the Constitution, with the grievance that he was in Government service and was not being given any posting in any hospital and was not also being paid his salaries. He prayed for a writ in the nature of Mandamus calling upon the Civil Surgeon of Burdwan, the Assistant Director (Nursing), Directorate of Health Services and the Director of Health Services to give him a suitable posting and to pay to him all arrears of his salaries. On that application this Court issued a Rule, being Civil Rule No. 3986 of 1958. In-that Rule, one Nirod Ranjan Sen Gupta, Administrative Officer, Nursing, Directorate of Health Ser vices, filed an affidavit-in-opposition therein stating as follows:
'I state that as the petitioner's service was terminated by order dated 24-11-55, no question of the petitioner's posting does at all arise'
4. When Civil Rule No. 3986 of 1958 came up for hearing before Sinha. J. his Lordship permitted the petitioner to withdraw the application, on which the Rule was issued, with the following observations :
'In the affidavit-in-opposition it has been disclosed that in or about the 24th November, 1955 an order was made terminating the services of the petitioner. The petitioner now says that he did not know of any such order and it was not communicated to him.
Be that as it may. I do not see how this application can proceed. In this case the petitioner has proceeded on the footing that he is still in the employment of the respondents. No relief has been asked against any order or termination and no demand for justice has been made regarding the order dated the 24th November, 1955. Accordingly this application, if persisted in, would be bound to fail.
In the circumstances Mr. Dutt for the petitioner has asked for leave to withdraw this application, with liberty to make another application in the proper form after giving the proper demand for justice.
I grant leave, as prayed for. The petitioner will have liberty to make a proper application in the proper form. I make it clear that I have not gone into the merits of this case'.
Thus ended the first chapter of the struggle, on the part of the petitioner, for relief.
5. After having withdrawn his application in Civil Rule No. 3986 of 1958, the petitioner wrote to the respondents, on June 25, 1959, to the effect that the order of termination on his services had never been notified to him and as such he should be deemed to be continuing in service and be given a posting. The Assistant Director of Health Services, Nursing, respondent No. 1, replied to the aforesaid letter, on 23-9-1959, therein stating that the case of the petitioner was being considered and a final decision would be communicated to him later on. Again on 23-12-1959, the petitioner received a further communication from the said Assistant Director to the effect that his case was still under consideration and that a final reply would be communicated to him shortly. No further reply followed. On 8-3-1960 the petitioner sent a reminder to the Director of Health Services, therein stating that the petitioner was unable to wait any longer for adecision and that if no decision was communicated to him within a fortnight the petitioner would becompelled to seek legal remedies. That letter also remained unanswered.
6. In these circumstances the petitioner moved this Court, under Article 226 of the Constitution, on 3-8-1960 praying for a writ of Mandamus commanding the respondents to withdraw or cancel the purported or the pretended order of termination of the service of the petitioner, dated 24-11-1955 or alternatively for a writ of Certiorari for the quashing of the aforesaid order. There was a further prayer for a direction on the respondents calling upon them to give a posting to the petitioner. On that application the present Rule was issued.
7. In showing cause to the Rule the respondent No. 1, Uma Rani Mitra, Assistant Director (Nursing), filed an affidavit in opposition. In the said affidavit-in-opposition the respondent No. 1 stated as follows :
'I, in my previous capacity as Superintendent,Nursing Services, had by no means really terminated his services as alleged but he was considered no longer in service as all possible kinds of leave admissible to him under the then existing rules were exhausted. Leave was always considered as an integral part of the service period of a person andenjoyment of the maximum amount of leave, extraordinary without pay admissible, viz., 3 months, rendered a person's service terminated. Such cases of similar nature in respect of temporary nurses were always considered by administration for re-appointment if posts were available, and the incumbents desired to return to service. Absences of this nature could never be as part of a person's service period. That was the interpretation of the Rule 174 and not 174(4) as the petitioner claims.I further say that I was quite competent in mycapacity as Superintendent of Nursing services to communicate to the petitioner that it was considered that he was no longer in service.'
In the said affidavit-in-opposition it is further stated:
'I say that the Memo No. SNS/5589 dated24-11-56 communicated to the petitioner the intimation that his services were treated to have beenterminated automatically under Rules. I say further that the previous affidavit - affirmed by Sri N.Sen, Administrative Officer, Nursing, clearly showsthat the date was 24-11-1956 and not 24-11-1955.I crave leave to the original at the time of hearing.
* * * * I say that the petitioner's appointment beinga temporary one, it was considered that he was nolonger in service and he was accordingly informed.'
8. When this Rule came up for hearing before Sinha, J., Mr. Nirmal Chandra Chakravarti, learned Government Pleader, took up a stand entirely different from the stand taken by the respondents previously. This will appear from the order, dated 23-11-1961, passed by Sinha, J., which is set out below:
'The learned Government Pleader says that the position taken by the State is that the petitioner was a temporary Government Servant and that his services could be terminated under the Rules applicable to temporary Government servants. He relies on a Finance Department Audit Memorandum, dated the 8th November, 1954. The relevant rule is Rule 3(b) which states that the service of temporary employees could be terminated after a month's notice or after payment of a month's salary in lieu of such notice. Government is willing to pay a month's salary in lieu of notice and therefore no relief could be granted in this application.
Mr. Maitra says that this stand is a new stand and he wishes to consider whether this memorandum has statutory force or not,
On this point, the State will be entitled to file an affidavit within three weeks from today. Reply thereto, if any, shall be filed within two weeksthereafter. This matter shall stand adjourned forsix weeks.'
9. Pursuant to the order made by Sinha, J. the respondent No. 1, Sm. Uma Rani Mitra, filed a further affidavit-in-opposition, from which I set out the following four paragraphs:
'2. I say that the Memorandum No. 4I33F/F 15/38/52 dated 8th November, 1954 issued by the Finance Department. Government of West Bengal regarding the termination of employment of temporary employees contains the service conditions of the temporary Government servants and the temporary servants are bound by the said service conditions. A true copy of the said Memo, is annexed hereto and is marked as Annexure 'A'.
3. That the petitioner was appointed temporarily as a male nurse as will appear from his service book to which I crave reference and he comes clearly within the purview of Section 3(b) of the said Memorandum and his services are liable to be terminated on payment of one month's wages in lieu of notice.
4. That the said Memorandum is Government order, though not made under any Act or any statutory Rule, but the petitioner being a temporary servant was/is governed by the said order of the Government and there is no other rule or condition so far as the temporary servants are concerned.
5. That the petitioner's service was not terminated on the ground of any misconduct but he was considered to be no longer in service since he was absenting himself for a period after exhausting all kinds of leave including three months extraordinary leave admissible to him; and he never appeared with a fit certificate to resume duty according to Service Rules. In the premises it is submitted that his services were rightfully terminated for his continuous absence'.
10. In the further affidavit-in-reply, filed on behalf of the petitioner, he disputed that the circular, relied pon by the respondents, had either any legal effect or governed the service conditions of the petitioner. He further stated that the Government having had admitted earlier that the petitioner was governed by Rule 174 of the West Bengal Service Rules and having had proceeded on that footing throughout, it was too late for the Government now to contend that the petitioner was not governed by the said rules but was only governed by the circular relied upon in the further affidavit-in-opposition. Unfortunately for the petitioner, Sinha, J. could not complete the hearing of the Rule and directed that the Rule shall not be treated as part-heard by him. It is in these circumstances that the Rule has been placed before me for bearing.
11. At the hearing of the Rule, Mr. Kashi Kanta Maitra, learned Advocate for the petitioner, stated that he would proceed on the footing that the petitioner was a temporary servant, in the absence of any material to show that he had been at any time given any permanent appointment. Mr. Nirmal Chandra Chakravarti, learned Government Pleader, made a candid concession to the effect that there was no material to show that the petitioner had ever been put on extra-ordinary leave and therefore submitted that he would not proceed on the basis that the petitioner was at any time on extraordinary leave. My task has been made easier by the aforesaid two concessions made by the learned Advocates, as hereinbefore stated.
12. Mr. Maitra, learned advocate for the petitioner, contended, with great emphasis, that the respondents were taking inconsistent positions. In the affidavit-in-opposition filed in Civil Rule No. 3986 of 1958, from which the petitioner withdrew, it was stated that the petitioner's service was terminated by an order dated November 24, 1955. Along with the affidavit there was a letter annexed, dated November 24, 1956 in which it was stated:
'As he did not join his duties in time after his release from the B. C. Hospital, in spite of direction for doing so, his services have been treated as terminated according to rule'.
The story of termination of the petitioner's service by an order, dated 24-11-1955 was given a go-by in the affidavit-in-opposition filed in the presentRule by respondent No. 1, iD this affidavit it was stated that the petitioner's services were treated to have been terminated automatically under the rules (apparently meaning Rule 174(4) ). It was further denied in the affidavit-in-opposition that there was anything contained in the earlier affidavit by N. Sen Gupta, Administrative Officer, filed in Civil Rule No. 3986 of 1958, which went to show that the service of the petitioner had been terminated on 24-1-1955. That stand was also modified when the matter came up for hearing before Sinha, J. and the Government wanted to terminate the service of the petitioner under Rule 3(b) of the Finance Department Audit Memorandum, dated 8-11-1954 by giving to the petitioner a month's salary in lieuof notice.
13. Mr. Chakravarti, learned advocate for respondents Nos. 1 to 3, tried to reconcile the inconsistencies pointed out by Mr. Maitra by contending that the date 24-11-1955 stated in the affidavit-in-opposition of N. Sen Gupta, in Civil Rule No. 3986 of 1958, as the date of the order of termination of the service of the petitioner, was a mistake and the date was really 24-11-1956 which was the date of the letter annexed to the said affidavit-in-opposition. He contended further that either the petitioner's case came under Rule 174(4) of the West Bengal Service Rules with the result that his service stood automatically terminated or that the case of the petitioner was governed by Rule 3 (b) of the Finance Department Audit Memorandum, dated 8-11-1954 in which case the Government was at liberty to terminate bis service either by one month's notice or by payment of a month's salary in lieu of notice. In my view the attempted reconciliation sought to be made by Mr. Chakravarti is somewhat clumsy. All inaccuracies are not explicable on the theory of mistake and this one the least so. If Mr. Chakravarti could produce an order by which the service of the petitioner was terminated on 24-11-1956 I might have accepted the explanation that the date given in the affidavit-in-opposition of N; Sen Gupta, filed in Civil Rule No. 3986 of 1958, was really a mistake. Mr. Chakravarti, however, could not produce any such order. The letter of 24-11-1956 (annexure A to the affidavit-in-opposition in Civil Rule No. 3986 of 1958) is not an order but is the communication of an order. That letter, no doubt, says that for not joining his duties the services of the petitioner 'have been treated as terminated according to rule' but does not say specifically from which date the services of the petitioner stood treated as terminated. It may just be that the respondents were late in communicating the order of termination of the service to the petitioner by about one year. The letter does not necessarily go to show that the order of termination of service was made on 24-11-1956. I have, therefore, to ignore the explanation by way of mistake as argued by Mr. Chakravarti. Apart from the letter of 24-11-1956 there is no other foundation for the story of termination of the service of the petitioner. Mr. Chakravarti admits that no order was made on 24-11-1955 and therefore the story of termination of the service of the petitioner as pleaded in the earlier Rule must also be ignored. The next question for my consideration is whether the service of the petitioner was terminated on 24-11-1956. Mr. Chakravarti argues that there was no order of termination of service made against the petitioner but that his service stood automatically terminated under Rule 174(4) of the West Bengal Service Rules and that automatic termination of his service was communicated to the petitioner on 24-11-1956. Rule 174(4) of the West Bengal Service Rules reads as follows:
'Government servant who not being in permanent employ fails to resume his duties on the expiry of the maximum period of extraordinary leave granted under Sub-rule (2) he shall, unless Government, in view of the exceptional circumstances of the case, otherwise determines, be deemed to have resigned his appointment and shall accordingly cease to be in Government employ'.
14. The aforesaid Rule was promulgated by the Governor, in exercise of the powers conferred by the proviso to Article 309 of the Constitution read with Article 313 only on 27-12-1958 and therefore could not be utilised by the respondents on 24-11-1956. Thus, the case sought to be made that by continued absence the petitioner, a temporary employee, automatically ceased to be in service is of no effect and must be ignored.
15. Mr. Chakravarti lastly contended that even though the petitioner's services did not stand automatically terminated the respondents may still terminate his services under the provisions of Rule 3(b) of the Finance Department Audit Memorandum, dated 8-11-1954 which reads as follows:
'(b) In other cases, i.e. where an employee has been appointed 'temporarily' or 'until further notice or orders' or where his appointment is 'terminable without notice' the services of the temporary employees may be terminated after a month's notice or after payment of a month's salary or wages in lieu of such notice'.
16. I need not concern myself with this argument at this stage. If the respondents have power under the said memorandum to terminate the services of the petitioner, they will be at liberty to exercise that power. That power has not as yet been exercised against the petitioner and I need not dilate upon any future action that the Government may elect to take against the petitioner. I need, however, make one position clear, namely, I do not express any opinion as to the validity and legal effect of the Finance Department Audit Memorandum, relied upon by Mr. Chakravarti.
17. The position is that the petitioner was appointed a temporary servant and his services never stood terminated. Consequently he is in Government service and it is the duty of the Government to utilise him in service. If there is no vacancy where he may be put and if he has become a surplus hand in Government service the Government may terminate his services but until then must treat him as a Government servant and must pay to him such pay and emoluments as may be admissible to him under the rules.
18. In the view that I take I quash the Memorandum No. SNS/5590, dated 24-11-1956 containing the purported order of termination of the petitioner's service and command the respondents not to give effect thereto. The prayer of the petitioner that he must be given a posting is not allowed but I order the respondents to treat the petitioner as a temporary employee until his services are terminated.
19. This Rule is made absolute to the extent indicated above. Let a writ of Mandamus issue accordingly.
20. The petitioner is entitled to the costs of this Rule which I assess at five gold mohurs.