A person appointed by the Government to discharge the functions of a suspended local authority is holding a civil post under the Government and is entitled to the protection of Article 311 of the Constitution of India.

Kapur, J.

1. Prem Prakash Dixit who was employed in the Water Works Department which was under the Municipal Committee, Muktsar, as Superintendent of Water Works has applied to this Court for directions against the Government of the Punjab and certain other public officers that he be restored in his office on the ground that his removal from service is contrary to the provisions of Article 311 of the Constitution of India.

2. On 29-12-1947 the Punjab Government suspended under Section 4 of the East Punjab Local Authorities (Restriction of Functions) Act, Act 9 of 1947, the Municipal water Works Department of Muktsar. By a notification dated 29-4-1949 the petitioner was appointed to discharge the functions of that Department, his designation being Superintendent, Water Works, on a salary of Rs. 162/- per mensem in the grade of RS. 152-8-200. This was also under Section 4 of that Act.

On 19-2-1954 by another notification the Punjab Government appointed Ram Nath, opposite party No. 6, who was Assistant Foreman working under 8. D. O. Mechanical, Public Health Sub-Division, Ludhiana to discharge the functions relating to the Municipal Water Works Department of Muktsar, with the result that the petitioners services came to an end, and on the 24th February 1954 the Secretary, Local Government Department, informed the Deputy Commissioner, Ferozepore, of this appointment, and in paragraph 4 it was stated as follows: "4. The services of Shri P. P. Dixit shall be treated as terminated under Section 45 of the Punjab Municipal Act, 1911, with effect from the date Shri Ram Nath assumes charge and he shall draw one months pay in lieu of the notice."

3. The question to be decided is whether the petitioner can have the protection of Article 311 of the Constitution of India, and for that purpose it is necessary to refer to the provision of the East Punjab Local Authorities (Restriction of Functions) Act. Section 4 provides:

"4. The Provincial Government, if satisfied that a local authority (not being a Cantonment Board) having jurisdiction in any notified area is incapable of performing or does not adequately perform, any or all of its functions, may suspend such branches or departments of the local authority as are entrusted with these functions, and shall appoint any person or persons either by name or designation to discharge such function or functions."

4. Under Section 5 the expenses for the discharging of the functions presumably by the Government have to be paid by the local authority and in certain circumstances the Government can call upon the person in charge of the funds to pay the expenses to Government.

By Section 8 the provisions of this Act override the provisions of the Punjab District Boards Act, the Punjab Municipal Act, or other similar Acts dealing with Small Towns.

5. For the Government it was submitted that this is not a civil post to which Article 309 of the Constitution of India will apply and therefore, the protection of Article 311 is not available to the petitioner because-

(1) he is not holding a civil post;

(2) he was not appointed to perform any functions of the State Government; and

(3) he is at the most a statutory agent of the local authority.

6. It was also submitted that the mere fact that the power to appoint or dismiss a servant is in the State does not make him an officer of the State because a person may be a servant of another although the power of appointing and dismissing him may lie with a third person.

Reliance was placed on -- Mangal Sain v. State of Punjab, AIR 1952 Punj 58 (A), where a person appointed by the Government as an Executive Officer of the Ambala City, Municipal Committee, was held not to be protected by Article 311 of the Constitution of India and, therefore, he could be dismissed without the provisions of that Article being complied with, but I do not think that the rule laid down in that case applies to the present case because in that case the Executive Officer could under th