Contingent menials employed in the Raj Bhavan, paid from the Governor's contract allowance and not subject to audit or examination by the State Government, are not Government servants or holders of civil posts under the State and are not entitled to the protection of Article 311 of the Constitution.

Imam, J.

1. There are four petitioners in this application, namely, Lachmi, Lakhan, Balkishun and Ram Baran. They have filed this application under Article 226 of the Constitution of India with a prayer that this Court should declare the order of their dismissal from service dated 18-3-1953, as illegal and without jurisdiction, and direct the opposite party to reinstate the petitioners from the date of dismissal, and that the directions may be given by issuing a writ in the nature of certiorari, or any other appropriate writ under Article 226 of the Constitution.

2. The case of these petitioners is that petitioner 1, Lachmi was a garden store-keeper at Raj Bhawan, Patna, and that petitioner 2, Lakhan, was a mate in the Raj Bhawan garden. The remaining petitioners, namely, Balkishun and Baran, were mazdoors of the Raj. Bhawan garden. It is their case that they have been dismissed by the Military Secretary to the Governor at Raj Bhawan, Patna, and that they have been illegally dismissed. They claim to be Government servants of the inferior grade, as such they are entitled to casual leave, sick leave, holidays leave besides Sundays.

They claim to have been dismissed not because that they were guilty of not doing their duties, but because they refused to do private work of their immediate superior officers, and that being so, their dismissal was not justified, more specially when there has been a direction by the Government through a letter of the Chief Secretary, Mr. L. P. Singh, prohibiting officers from employing peons as domestic servants. This, in short, is the case of these petitioners.

3. On behalf of the opposite party, namely, the Military Secretary to the Governor of Bihar, Raj Bhawan, Patna, and the State of Bihar, a counter-petition supported by a counter-affidavit has been filed in which it is alleged that the allegations that these petitioners were enjoying the cadre and privileges of the Government servants of the inferior grade is wrong and that the statement of petitioner 1 that he was promoted to the rank of garden storekeeper is also wrong. What really happened was that petitioner 1 had to keep charge of the garden implements and, therefore, his request for extra wages for that work was accepted and he was being paid an extra three rupees every month for that work. It is also alleged in the petition on behalf of the opposite party that the Raj Bhawan garden mazdoors. are contingent menials and are paid monthly wages from garden contingencies that the garden mazdoors are employed entirely on a temporary basis, that their number is increased or reduced according to the requirement obtaining at the time, that these mazdoors are employed and discharged on the spot, as all casual labourers, that there is no letters of appointment issued to them, nor is there any practice of issuing any letter of discharge to them, that they are liable to be discharged from employment without being asked to show cause against such proposed order, that the mere fact that a number of mazdoors have continued to work for a number of years at a stretch does not make them government servants, nor is there any change in their status as contingent menials, that they do not belong to any grade of Government service, and that they are not given any uniform or livery nor any badge and they are not governed by the rules relating to chaprasis or other employees of Grade IV.

It is also alleged that the statement that Lakhan was promoted to the rank of the mate is not correct. The fact is that experienced mazdoors in the Raj Bhawan are put in charge of a group of mazdoors and they are called mates, and for this, they are paid extra Rs. 5/- per month, and that this fact cannot in any way, change the nature of their employment. It is also alleged that there are no rules governing the terms of employment of the garden mazdoors in the Raj Bhawan; they are paid out of garden contingency and a register for their attendance is maintained, and on th