JUDGMENT S.N. Katju, J. - This is a plaintiff's appeal arising out of a suit for injunction restraining the defendants from interfering with the rights of the plaintiff-appellant to perform scavenging duties in the locality in dispute which lies within the municipal limits of Chandausi. It was alleged that the members of the sweeper community had a customary right to perform scavenging work in their respective Thikanas and the building in dispute which is now occupied by Government Girls Intermediate College lies within the Thikana of the appellant and that the defendants Nos. 1 and 2 had prevented the appellant from performing the scavenging duties in the aforesaid building and had employed defendant No. 3 to perform such duties. The suit was resisted on the ground inter alia that no such right as claimed by the appellant existed with regard to the building in dispute and that in any event no such custom as alleged by the appellant was applicable to buildings occupied by the Government. It was further contended that the suit was barred because no notice under Sec. 80 of the Code of Civil Procedure had been served on defendant No. 3. The trial court found that the College building came within the Thikana of the appellant. It, however, held that the custom as alleged by the appellant was not applicable to a building in the occupation of the Government. It further held that the suit was not maintainable because no notice under Sec. 80 of the Code of Civil Procedure had been served on defendant No. 3. On the aforesaid findings the trial court dismissed the suit. On appeal the decision of the trial court was affirmed by the court below. The court below, however, did not record any finding whether the college building came within the Thikana of the appellant. It affirmed the view of the trial court that the appellant could not claim any customary right over the building in suit which was in the occupation of the Government. It further affirmed the finding of the trial court in respect to the non-maintainability of the suit on account of the absence of a notice under Sec. 80 of the Code of Civil Procedure. It further affirmed the finding of the trial court in respect to the non-maintainability of the suit on account of the absence of a notice under Sec. 80 of the Code of Civil Procedure. Learned counsel for the appellant tenuously contended that the court below had erred in holding that the customary right as claimed by the appellant' would not apply to the building in suit simply because it was occupied by a Government institution. I see considerable force in this contention. If there is a customary right of the members of the sweepers community to get zones of land allotted to them within which they have to confine their scavenging work and it appears to be well established that such a custom prevailed within the municipal limits of Chandausi, then there is no reason why the application of such a custom should be confined only to the buildings of private citizens and not to buildings occupied by the Government. It is well settled that any arrangement between the members of the sweepers community inter se by the force of custom or usage would not be binding on third parties but such a custom would apply to the members of the community inter se. There appears to be sufficient evidence on the record to indicate that the members of the sweepers community had their Thikanas within which they worked and the appellant also had his Thikana within which the building in suit was situated. It will, therefore, follow that he would have a customary right to perform scavenging duties in the said building and such an arrangement would be binding on defendant No. 3 but third parties would not be bound by any such customary rule. It is always open to an employer to take into service any person of his choice for the performance of scavenging duties. In this view of the matter the appellant is entitled to a declaration that he has a right to perform scavenging duties in the building in suit. Of course it is always open to the employer concerned to refuse to accept the service of the appellant. It was, however, contended that the suit was not maintainable because no notice under Sec. 80 of the Code of Civil Procedure had been given to defendant No. 3. The latter works in the building of the Girls College. Of course it is always open to the employer concerned to refuse to accept the service of the appellant. It was, however, contended that the suit was not maintainable because no notice under Sec. 80 of the Code of Civil Procedure had been given to defendant No. 3. The latter works in the building of the Girls College. It is a Government institution and according to the respondents he is a Government servant and thus a public officer within the meaning of Sec. 80 of the Code of Civil Procedure. It is alleged that in the absence of a notice under Sec. 80 the suit must fail. Learned counsel for the appellant contended that no notice under Sec. 80 was necessary as defendant No. 3 was neither a public officer nor was he impleaded in respect of any act purporting to have been done by him in his official capacity. He was primarily impleaded in the suit because of the fact that he as a member of the sweepers community was bound by the customary rule of not encroaching in the sphere of work of the appellant and because he was working in the zone where the appellant was entitled to work. Learned counsel contended that the appellant was only performing menial duties and he was not a public officer. The mere fact that the Girls College was run by the Government and he was in the employment of the aforesaid institution could not imply that he was a public officer within the meaning of Sec. 80 and the scavenging duties discharged by him were not acts done by him in his official capacity. The question, therefore, is whether a sweeper employed for scavenging work in a Girls College run by the Government would come within the meaning of a public officer as contemplated by Sec. 80 of the Code of Civil Procedure. Sec. 80 requires that no suit would be instituted against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after notice in writing has been in the case of a public officer delivered to him or left at his office . . . . . . . Sec. 80 thus requires that firstly the suit should be against public officer and secondly it should be in respect of any act purporting to have been done by such public officer in his official capacity. Sec. 2 of the Code defines a public officer. The only clause which was relied on by the respondents was Cl. (h) which says: "Every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty." The definition in Cl. (h) has to be read along with the aforesaid provisions in Sec. 80. Sec. 2 enumerates the category of officers who would come within the meaning of the expression "public officer." It could not be said that the enumeration of the categories in sub-Sec. (17) is merely illustrative and not exhaustive. The clauses in sub-Sec. (17) mention pointedly the type of persons who would fall under the category of a public officer. There is no substance in the contention that the aforesaid enumeration in Cl. (17) is not exhaustive. All that Cl. (h) says is that the public officer must be in the service or pay of the Government or he should be remunerated by fees or commission for the performance of any public duty. Thus it has to be seen whether defendant No. 3's scavenging work in the Girls College amount to acts done in his official capacity. The word "public officer" could not mean every person in the service of the Government. If the intention was that every employee of the Government should be designated as a public officer then there was hardly any occasion for prescribing the different categories of officers in Sec. 2(17). All that would have been necessary to say was that every employee of the State was a public officer but that has not been done and the very fact that several categories of officers are enumerated in sub-sec. (17) would itself mean that a public officer does not necessarily mean every employee of the Government. A public officer must be an officer and his duties in order to attract the provisions of Sec. 80 must relate to work done in his official capacity. The expression "public officer" implies not only a person who holds an office but a person in the employment of the Government who is called upon to discharge public duties. A public officer must be an officer and his duties in order to attract the provisions of Sec. 80 must relate to work done in his official capacity. The expression "public officer" implies not only a person who holds an office but a person in the employment of the Government who is called upon to discharge public duties. Therefore he must be an officer whose function to discharge public duties. A menial employee may be in the employment of the Government but he would not necessarily be a public officer if he is not called upon to perform any work of administrative nature, or does not discharge any duties of the Government which have been delegated to him. The nature of the work performed by defendant no. 3 cannot be said to be work done by a public officer in his official capacity. 2. Learned counsel for the appellant relied on Reg. v. Ramajirav Jivaji rav, 12 B.H.C.R. 1. The judgment of the Court in the aforesaid case was delivered by Mr. Justice West. He observed as follows: "We do not think that the fact of certain duties being enumerated as constituting one, who is an officer, a public servant, necessarily has the effect of making any one, on whom any of those duties devolves, an officer. Two things must combine to meet the requirements of the clause quoted above. In the first place, there must be an officer; and, in the second, he must be under an obligation to perform one of the duties there enumerated. We must, therefore, see who is an officer. It is clear that it is not every one who has to do with Government in pecuniary matters, or who has to render accounts, or to submit documents, who is a Government officer. Seeking the help of English law, we find, in Bacon's Abridgment at Vol. We must, therefore, see who is an officer. It is clear that it is not every one who has to do with Government in pecuniary matters, or who has to render accounts, or to submit documents, who is a Government officer. Seeking the help of English law, we find, in Bacon's Abridgment at Vol. 6, page 2, the article headed "of the nature of an officer, and the several kinds of officers," commencing thus: "It is said that the word `officium' principally implies a duty, and, in the next place, the charge of such duty; and that it is a rule and where one man hath to do with another's affairs against his will, and without his leave, that this is an office, and he who is in it is an officer." And the next paragraph goes on to say: "There is a difference between an office and an employment, every office being an employment; but there are employments which do not come under the denomination of office; such as an agreement to make hay, herd and flock, and c. The first of these paragraphs implies that an officer is one to whom is delegated, by the supreme authority, some portion of its regulating and coercive powers, or who is appointed to represent the State in its relations to individual subjects. This is the central idea; and applying it to the clause which we have to construe, we think that the word "officer" there means some person employed to exercise, to some extent, and in certain circumstances, a delegated function of Government. He is either himself armed with some authority or representative character, or his duties are immediately auxiliary to those of some one who is so armed." It may be mentioned that the 9th clause of Sec. 21 of the Indian Penal Code which was under consideration in the aforesaid case also contains the following provision : " . . . . . Every officer of the service and the pay of the Government or remunerated by fees or commission for the performance of any public duty". The aforesaid words are identical with the words used in Sec. 2 (17) (h) of the Code of Civil Procedure. Thus observations of West J. would apply equally to the provisions of Sec. 2 (17) (h) of the Code of Civil Procedure. 3. The Queen v. Nachimuttu, I.L.R. 7 Mad. The aforesaid words are identical with the words used in Sec. 2 (17) (h) of the Code of Civil Procedure. Thus observations of West J. would apply equally to the provisions of Sec. 2 (17) (h) of the Code of Civil Procedure. 3. The Queen v. Nachimuttu, I.L.R. 7 Mad. 18 it was held by Chief Justice Turner that labourers or menial servants employed to do work or labour on account of the Government are not officers and do not fall within the definition of public servant in the Sec. 21, I. P. C. 4. In Oakes & Co. Ltd. v. J.P. Discarcie, 5 I.C. 802 the question was whether an Assistant Surgeon serving in the Military Department was a public officer within the meaning of the proviso (I) of Sec. 60 of the Code of Civil Procedure. It was held that he was neither a "gazetted officer" under Sec. 2(17) (c) of the Code of Civil Procedure nor did he come in sub-Cl. (h) of Sec. 2(17). It was observed as follows :- "Not being a "Commissioned Officer" in the Military Force of His Majesty, is the judgment-debtor, a "Gazetted Officer," (CI. (c)) or is he an "officer in the service or pay of the Government," (Cl. (h) ), or is he neither? We have no hesitation in holding that the judgment-debtor cannot come under sub-Cl. (h). Had the Legislature intended the words of that sub-clause to have so vide a meaning as to include an Assistant Surgeon in military employ merely because he was in the service and pay of Government, it is hard to see what need there was for the elaborate categories of public officers detailed in sub Cls. (a) to (g)." 5. In Maung San Ya v. Maung Nagwe Hla, AIR 1923 Rangoon 250 the question was whether a village headman was a public officer. It was held that he held an office by virtue of which he was empowered to place or keep persons in confinement and had various other powers and duties which constituted him a public officer within the meaning of Sec. 2 and 80 of the Code of Civil Procedure. 6. It was held that he held an office by virtue of which he was empowered to place or keep persons in confinement and had various other powers and duties which constituted him a public officer within the meaning of Sec. 2 and 80 of the Code of Civil Procedure. 6. Learned counsel for the respondent stressed that the expression used in Sec. 2 of the Code of Civil Procedure was "public officer" which was wide enough to include every holder of an office under the Government irrespective of the fact whether such office was held by a menial servant or by a person holding an office of a character which did not involve the performance of any menial duties. Learned counsel referred to Waman v. N. H. Mitra, AIR 1928 Nagpur 33 where it was held that a school master must be deemed to be public officer within the meaning of Sec. 80, C.P.C. The question is not fully discussed in the judgment in the aforesaid case and all that is said is that simply because he was in Government service therefore he must be a public officer. In Gokul Chandra Das v. Manager of Baniachong Mozumdari Ward Estate, AIR 1939 Calcutta 720 it was held that a Manager of Court of Wards under the Bengal Court of Wards Act was not a public officer within the meaning of Sec. 2(17) (g) but he came within the category of a public officer within the meaning of Cl. (h). Mr. Justice Edgley referred to another decision of the Calcutta High Court in Nand Lal Bose v. Ashutosh Ghosh, AIR 1920 Calcutta 167 in which it was observed as follows :- "The third point is that the defendant was a public servant and therefore entitled to the benefit of a notice under Sec. 80, Civil P. C. I cannot find that he falls within any of the classes enumerated in Cl. 17, Sec. 2, Civil P. C., and I therefore think he was not entitled to a notice." 7. 17, Sec. 2, Civil P. C., and I therefore think he was not entitled to a notice." 7. From the observations made in the aforesaid cases it would follow that mere employment under the Government does not make a person a public officer within the meaning of Sec. 80 and a menial employee of the Government who performs scavenging duties in an educational institution run by the Government could not be a public officer within the meaning of Sec. 80, C.P.C. Therefore it was not necessary that a notice under Sec. 80 should have been given to defendant No. 3 and in the absence of such a notice the suit was maintainable. The appellant had asked for injunction and had also prayed for a declaration that he was entitled to discharge the scavenging duties in the building in question. It is not possible for me to give him relief by granting an injunction because the appellant has no right to compel the respondents 1 and 2, viz. the U.P. State and the Principal of the Girls College to take him in the employment of the institution. Under the circumstances it is not possible for this Court to grant the relief of injunction to the appellant. He is, however, entitled to the declaration that he has prayed for. 8. I set aside the decree of the court below and decree the suit in part by granting the declaratory relief as prayed for by the appellant. The appeal is thus partly allowed. Parties shall bear their own costs throughout.