Termination of service of a government employee who has no right to the post, such as a provisional or officiating appointment, does not amount to punishment or penalty unless there is something more than mere termination of service, such as disobedience of an order of a superior officer.

( 1 ) THIS is a suit for a declaration that the plaintiff is still a member of the West Bengal Fire Service, for recovery of arrears of salary and for other reliefs.

( 2 ) DURING the war in 1943, Bengal Fire Service was created by the Government of Bengal, it was a part of the A. K. P. Organisation of the Civil Defence branch. The plaintiff was appointed a Station Officer, Bengal Fire Service for Barisal. He was to be on probation for three months and was to be confirmed to the post on the expiry of the term, provided his work was found to be satisfactory. The department was temporary and the plaintiff's office could not but be temporary. In December 1945, he was confirmed as a Station Officer, Barisal, till 38-2-1956. His term of appointment was extended from time to time. After the partition of Bengal, the plaintiff opted for service under the Government of West Bengal and by a telegram dated 10-9-1947, by the Regional Officer, Barrackpore, the plaintiff was directed to appear before the Director of Posting. It appears from a Circular Memorandum issued by the Chief Secretary of the West Bengal Government, that the postings of those officers, who have opted for West Bengal were to be tentative till they are finally absorbed. The policv of the Government in that behalf was yet to be formulated. These officers, however, were allowed to draw their old pay. The period of all temporary posts was extended by a Notification dated 26-9-1947, till 1-11-1947. The plaintiff was appointed a temporary Sub-Officer from 1-10-1947 in the Calcutta Fire Service and posted at Central Avenue Station. By a Notification dated 25-11-1947, the Government extended the period of temporary officers till 29-2-1948. By an order dated 21-4-1950, a number of provisional appointments were made by the Director of West Bengal Fire Service. The plaintiff was by this order provisionally appinted Sub-Officer, Lillooah. In or about this period, the West Bengal Fire Service Directorate was created under the West Bengal Fire Service Act passed and published on 30-3-1950. From a Memo dated 29-4-1950, issued from the office of the Director, Fire, Service, it appears that the various offices under the said Directorate would be filled up with effect from 18-4-1950, by various persons in the existing personnel. From the list annexed to the Memo it appears that the plaintiff was provisionally selected for the office of a Sub-Officer and an intimation to that effect was given to the plaintiff by a communication dated 4-5-1950. Prior to this provisional selection, the plaintiff was required to appear before a Selection Committee, set up by the Government. It appears that another Committee was appointed to review the appointment. This Committee found the plaintiff unsuitable. On 30-6-1950 notice was served on the plaintiff that his service would be terminated on the expiry of July, 1950. By the same letter the plaintiff was offered an office of lower rank, acceptance of which must be intimated before 8-7-1950. The plaintiff did not intimate his acceptance of the office of lower rank. The plaintiff naturaly felt aggrieved by the decision of the Government contained in the notice of 30-6-1950 and made representations for reconsideration. The plaintiff not having intimated his decision to accept office of lower rank, the plaintiff was informed by a letter of 3-8-1950, that he had been discharged from West Bengal Fire Service from 1-8-1950. Thereafter the plaintiff addressed various appeals and representations and not having received any satisfaction, ultimately filed this suit on 20-8-1955.

( 3 ) IN the plaint after setting out the facts, the plaintiff contended that the order terminating service was void, being in violation or the Constitution and it was a case of mala fide exercise of power. The substantial reliefs claimed are: (i) a declaration that the order dated 3-8-1950 purporting to dismiss the plaintiff from the said West Bengal Fire Service was void an